Austin Criminal Defense Lawyer & Attorney : Dax Garvin : Texas, Travis County, Georgetown, Round Rock, Cedar Park

The Dallas News online reports:

Mr. Chabot was arrested after prosecutors alleged that he had violated terms of his release. At a bond revocation hearing, Dallas County First Assistant District Attorney Terri Moore told the court that Mr. Chabot, 49, has been leaving his home for purposes other than visiting a hospital — the only reason he can leave his Cedar Hill house while out on bond.

Prosecutors also say that a sexual relationship between Mr. Chabot and his sister-in-law’s daughter may violate terms of his release. Under a court ruling, the woman is one of Mr. Chabot’s live-in chaperones. Ms. Moore said she doesn’t believe the court intended for Mr. Chabot to be permitted a live-in girlfriend, wife or spouse while out on bond.

If it is true that Mr. Chabot was going to a location other than one he was allowed as a condition of his bond, I can understand him being re-arrested.  However, I am having a very difficult time grappling with the concept of his sexual relationship having any concern about the conditions of his bond, as pointed out by the prosecutor, Ms. Moore.

I do not believe that any court can take away that 'fundamental right' to marry.  Without seeing the actual bond, my statements here are more hypothetical than anything else.  Sure, there could be limitations on contact, but if a person who is of legal age comes to him and Chabot is not violating the house arrest by leaving the premises, who he has sex with is his own business, especially if they are now contractually obligated and bear the headings of husband and wife.... Further, aren't marriages generally consummated?

One other thought, this story reminded me of one of my former client's cases where a condition of probation was going to be no contact with a given person, whom he had been dating for several months... the simple solution to that:  GET MARRIED!  It's not like being married really means, 'til death do us part...

Bottom line, if the man was not causing any harm, his first trial was overturned and he may be subjected to a second one, it surely sounds as though the case is one that has some problems.  Unless the facts I have are incorrect, someone else has been convicted of the murder.  My primary concern with this is that people do not realize how many rights they are giving up on a daily basis by being apathetic to matters like this ....

• Email This
• Print
• Comments
• Trackbacks

To begin, I must say that I have not seen the video and cannot provide concrete evidence that the decision by Williamson County Attorney Jana Duty to dismiss the DWI charge against State Representative Mike Krusee was in error or showed bias, but it sure raises the question because I cannot recall a single time that a DWI for one of my clients or any other defense attorneys that I know were just outright dismissed.  Legally, the charges could be refiled, but will they, most likely not....

Now, it has happened that cases have been dismissed "with counseling up front" but the far more common practice is to reduce the charge to some other misdemeanor, usually Obstructing a Highway or sometimes Reckless Driving....

So, KVUE news has an excerpt of the DWI video showing Krusee's arrest.  But this alone is not enough to make a decision of whether or not the case should go forward.

Obviously, Corporal Michael Scheffler saw enough to develop probable cause to arrest the State Representative...

If anyone else knows more about what is going on, please let me know.  I'm really curious to see how good this video must have been to allow a DWI defendant to obtain an outright dismissal!

• Email This
• Print
• Comments
• Trackbacks

The background information for this post is "old news" by internet standards as it hails back to April, 2008, and we are now seven months past that.  But that background story is needed in order create a context for the new story. 

A highway patrolman dressed in a handmade Ku Klux Klan-like outfit while on duty was suspended without pay, while another trooper who forwarded a cell phone photo of the trooper in the costume has been demoted, authorities said.

Craig Franklin, a 12-year veteran of the Ohio Highway Patrol, is pictured in the Jan. 20 photo with a white cone on his head, white paper mask with eye holes and a white cloth covering his shoulders, according to a highway patrol report.

Franklin is otherwise in trooper uniform. A handgun holster, a radio normally issued by the patrol and other police equipment can be seen in the photo, the report said.

Now, this officer and his photographer will be re-instated and allowed to again roam the streets and highways of Ohio, but their utility and credibility will definitely be attackable in Court and in cases that they file.  Imagine court proceedings where the troopers are testifying and this picture being tossed on the screen for a jury to see? It is possible, definitely for purposes of impeachment!

Now for the present context that provided me the basis for this entry.  A probationary police officer, Ben Murdoch, resigned because he became the target of investigation for posing at a Halloween party in his own residence with a friend who dressed as a KKK member.  I could not find that photograph to post here, but have read about it and understand that it depicted Murdoch, who was dressed as an 80s rocker and a Hispanic friend dressed as a KKK member, both flashing a gesture that arguably supported nazis.  A statement from Murdoch's police chief:

Because he was considered a probationary employee for a year, Chief Chris Magnus could have terminated him for any reason. Rains said had Murdoch not been on probation, he would have recommended that he fight any discipline on the grounds of free speech and free association.

But Magnus said Thursday, "I believe any member of a police department engaged in the type of behavior depicted in these photographs would be showing deplorable judgment, a lack of maturity, and serious racial insensitivity. This kind of behavior does not reflect either the attitudes or judgment of other members of the Richmond PD, who take pride in serving a multiracial and multiethnic community."

The two key facts working against Murdoch were that he was a probationary employee and the gesture, even if it was done in "fun" included him in its participation rather than his mere presence in the photograph. 

While I can understand the Chief's statement, I do not think that a photograph taken at a private party demonstrates racism, especially given that it was not Murdoch dressed as the KKK member, and given that he was not in uniform at the time.  One of many versions of this article is available for review here.

I do understand that the Chief is concerned about the Department and its public perception, as he should be.  And, had Murdoch done something like the two Ohio troopers mentioned at the beginning of this article, I would definitely support his resignation or termination, just as I am opposed to the reinstatement of the two from Ohio.  But from my point of view, the Richmond Police Department do not pay Murdoch to be subject to their every whim and availability 24/7... he was off work, at a private party, drinking alcohol (in the privacy of his residence with friends)...the Ohio troopers were on duty, wasting tax-payer funds (which is an angle that was not even considered from what I have read on that story).

So to summarize, I must shame the OH arbitrator for ordering the reinstatement of the troopers who took insensitive while supposedly working and the Chief for coming down so hard on Murdoch... in all walks of life, everyday, and in every way, we need to exercise Common Sense!

• Email This
• Print
• Comments
• Trackbacks

In the West Hollywood area, one home is drawing an extraordinary amount of attention, much of it negative because it depicts two mannequins, one wearing a John McCain mask and engulfed in flames and another dressed down to the glasses and conservative red suit mimicking Palin hanging by a noose.  The LA Times reported on this story.

Speaking for the Los Angeles County Sheriff's Department, Steve Whitmore said:

"I'm not defending this; I'm not criticizing it. It doesn't rise to the level of hate crime."

And, I must agree with Mr. Whitmore 100%.  While I would never put this display in my yard, I applaud law enforcement for recognizing that this is a free speech issue and nothing more.  A hate crime is one directed against a person.  Clearly, there is no victim in this instance, only tacky decorations.

In fact, Texas defines a hate crime as follows:

... crimes that are motivated by prejudice, hatred, or advocacy of violence....

Federally, hate crimes are defined as:

...crimes that manifest evidence of prejudice based on race, religion, sexual orientation, ethnicity, or disability.

With this display, there is no crime, thus there is nothing to "enhance" with the "hate crime" statute.

Look for yourselves, here are the pictures... love it? hate it? Either way, this is not a crime.

• Email This
• Print
• Comments
• Trackbacks

Cases against officers are very difficult to prove and in some jurisdictions virtually impossible to prosecute as the community rapidly supports their police, but the case that stemmed from the shooting of Kathryn Johnston is one that attracted worldwide attention.  A brief synopsis of what happened is captured here:

The federal investigation into the fatal shooting of 92-year-old Kathryn Johnston ended Thursday with the guilty plea of former Atlanta police Officer Arthur Bruce Tesler.

Against the advice of his lawyer, Tesler pleaded guilty to conspiring to violate civil rights, resulting in the Nov. 21, 2006, death of Johnston at her Neal Street home.

As part of a plea agreement, federal prosecutors will recommend a sentence of 10 years and one month in prison. Tesler, 42, is to be sentenced in February.

Johnston's killing shocked the nation. It also rocked the Atlanta police force with revelations that officers faked warrants to make drug cases.

The full account of this story is available as written by Bill Rankin.

What is most amazing about this story is that the officers did not accurately report the facts in the effort to get the search warrant:

The officers lied to a judge, smashed in Johnston's door and unloaded 39 shots at the elderly woman as she fired a shot at the invaders with an old revolver. One officer then handcuffed Johnston as she lay dying. Drugs were then planted in her basement.

To Ms. Johnston's credit, she fired shots at the invaders, which she was justified in doing.  At least in Texas, when someone tears into your residence, you may use deadly force.  But, to get at the real crux this story represents, I want to know why an officer would lie to get a search warrant?  It's not like officers do not have enough work to do already with cases that are factually accurate.

Having been a cop for almost three years, I cannot even imagine lying in a report, exaggerating the facts, or putting information in a sworn document that was not true. 

Without being stuck in this portion of questioning motives, I believe this is a positive outcome for the case, yet the punishment is weak.  Imagine if some person, who was not a cop knocked down the door of a house and entered with guns blazing, he or she would be on death row....

The proposed change in the law to no-knock warrants:

State Sen. Vincent Fort (D-Atlanta), who attended the plea, said the two years since Johnston's shooting have been "hellish" for the northwest Atlanta community. He called for a robustly funded citizen review board to investigate police misconduct and legislation outlawing no-knock warrants to protect both the public and the police.

Two points on this:

1. Austin currently has a "citizen review board" and to date, I am unclear that it really has done very much.  I understand that the idea is a good one, but I am not yet convinced that the board actually gets much done.  So, I would worry that this may not lead to the change that is needed in law enforcement.
2. No-knock warrants being outlawed could be beneficial, but that is not the solution to the problem because cops will just conduct the warrant service as set out below:

• Knock-knock (as the ramming device rocks backward)
• Police, open the door (ramming device strikes the door).

The result:  A door will be torn down and cops will be in the room where a similar tragedy could repeat itself.  The only real solution is to remove the bias, lying, and overzealousness of officers like those from Departments across the country... but the method of doing that remains a mystery to me.  I bet that if I knew how to provide this solution, I would be a very well-paid consultant....

Oh, and one last thought that is a bit out of place for the article:  What happens to all the people convicted of crimes where the officers were involved... I think mistrials are due!

• Email This
• Print
• Comments
• Trackbacks

According to the website for the Sunset Advisory Commission, the agency was created to identify and eliminate waste, duplication, and inefficiency in government agencies. Here is a brief summary from that same website as to the agency's purpose:

The Commission questions the need for each agency, looks for potential duplication of other public services or programs, and considers new and innovative changes to improve each agency's operations and activities. The Commission seeks public input through hearings on every agency under Sunset review and recommends actions on each agency to the full Legislature. In most cases, agencies under Sunset review are automatically abolished unless legislation is enacted to continue them.

One of the agenices currently being targeted for reform is the State Office of Administrative Hearings (SOAH).  This is the agency responsible for managing the driver's license suspension hearings that must be requested within fifteen (15) days of a person's arrest for Driving while Intoxicated (DWI).

I wanted to directly quote some of the text from the most recent issue dated in October, 2008, however, it is protected and does not allow that function.  Thus, I have re-created the information below as a quotation, however a PDF of the Report is available:

The Administrative Hearing Process for Suspending Drivers' Licenses of Individuals Arrested for DWI Wastes Government Resources.

1. Require hearings to be held by telephone and allow witnesses to testify by telephone, unless the Judge finds that the fair administration of justice requires an in-person hearing.
2. Require affidavits of breath test operators and supervisors to be admissible without the witnesses' appearance unless the judge finds that justice requires their presence.
3. Require the defense to subpoena breath test operators and supervisors rather than merely "requesting" them.

Reading through this article, you will find that the Sunset Commission believes it further wastes government resources because of the overtime and expense the officers incur as a result of their presence.  However, there is no monetary expense to the officers as they are given a check that pays for their mileage to and from the hearing location.  Yes, there may be overtime that the officers are paid but that is justified by the additional work they are putting in.  While the Sunset report suggests that this is taking officers away from the street that is really no different than when they are summoned to court to provide testimony in cases that they filed.

As to the recommendation about having hearings by telephone, that troubles me for a number of reasons:

1. Possible technical difficulties that could lead to an automatic suspension;
2. Uncertainty of the person testifying (anyone could substitute, even if forbidden); and
3. Inability to observe body language and other non-verbal communications that could lead to additional questions regarding the matter (possibly relating to bias, etc.).

Lastly, the Sunset Commision acknowledged that telephone conferencing costs would increase but they did not provide any numbers in that realm.  Who knows, this may overshadow the costs of having live, in-person hearings, especially since the Defense reimburses officers for their travel expense.

And of course, the easiest way to reduce the number of ALR hearings and save money is to properly train officers such that only "good arrests" are made.  According to information in the Sunset report, 8% of the cases did not receive a license suspension because of insufficient evidence.  Another 18% were dismissed.  And, 74% resulted in license suspensions... so the overall goal of the ALR process as set out in the report is being attained in almost 3/4 of all cases!

Again, this is just another example of allowing the rights of those accused of crimes to errode and to be diminished if the Texas Legislature adopts these changes.  If this attitude and methodology are not reduced soon, the only rights remaining will be to do exactly what a cop says, when a cop says, and how a cop says... and then we might as well toss out the Constitution because it seems to mean less and less.

• Email This
• Print
• Comments
• Trackbacks

Robert Guest wrote about a series of cases he has defended of late where the result was a reduction by the state to Obstructing a Highway for a plea instead of taking a DWI to trial....

• Email This
• Print
• Comments
• Trackbacks

From time to time, I am consulted by a person wanting me to assist them in getting a family member out of prison.  Specifically, they have an upcoming parole hearing and they want to know what I can and will do as their attorney.  Below are the steps that I take when working through a parole hearing, where the inmate's release is pending:

• Review the client's case (reason they are in prison)
• Obtain and review prison records: disciplinary and grievance records
• Meet with the Client face-to-face
• Interview the Client
• Speak with family and friends to make living and transportation arrangements (upon release)
• Create arguments to justify parole
• Explain and answer points discouraging parole
• Review the Client's written argument and parole plan
• Submit the argument with an interview request to speak with the lead voter on the parole board of the panel reviewing the case
• Speak with the parole panel members who vote on the parole matter and present a verbal presenation to the parole board members voting on the case
• Ask for an immediate release and discuss with the parole board members conditions that they may want implemented to approve the parole
• If the vote is for parole, track the case throughout the remaining steps until the parole certificate is printed
• If the vote is against parole, discover the reason(s) for the denial and provide any follow-up parole presentation that is necessary for free when the next review occurs

Of course, there is no guarantee that a person will be paroled and the amount of time that a person must serve in prison before being eligible varies.  However, these are the basic steps that outline the process for preparing a parole case.

Fees vary depending on the amount of witnesses and hours of work to be spent on the matter.  However, like my other criminal defense practice, I work on a flat-fee basis.

• Email This
• Print
• Comments
• Trackbacks

The Houston Criminal Defense Lawyer Blog written by Mark Bennett posted the following excerpt from his "mailbag" which posed a question I have struggled with for some time.  Below is what Mark had on his entry at the time I found it:

From the mailbag:

Please don’t take my unique questioning ideas personally, as I don’t know and I am just asking you what you think. I was wondering whether being openly political on your professional legal blog may sometimes be unwise. I have written or emailed other lawyers the same question. I also feel passionately about politics and love politics and I guess I am somewhat of a political junky. Yet, I think irregardless of which party wins or which party I support, that maybe it would be more correct to post political ideas on a different blog than my professional legal practice blog. Some people say blogs are like diaries and people put down emotional things and say things like I feel “cloudy” and stuff like that. I have been entertained and educated by blogs and if I disagree with the blog, well I don’t have to read it, although I respect other people’s ideas so I usually read it anyway. Never-the-less, would you feel uncomfortable in representing someone from the opposite political party from you. Also, can someone from the opposite political position have worthy valuable ideas and deserve some degree of respect even though you disagree with them. If your mother or father or someone you care about were members of the opposite political party would you treat them with respect? Are law blogs required to be political? Are there some things that should be above or beyond politics? How would it feel to be sentenced by a Judge who was a member of the opposite political party or prosecuted by a prosecutor from the other side or defended by a defender from the other side or arrested by a law officer from the opposite political party? I think there have been some historical incidents involving political type things and they usually go against the politicizer. Like Socrates, all I know is I don’t really know, but asking the question makes you think.

Not so much.

Criminal defense trial law is politics — not just the politics of interpersonal relationships in the civic arena, but also how human beings relate to their government. It’s foolish to suggest otherwise.

Arguably, the criminal defense lawyer who thinks that he (like the legal system?) is “above” politics is doing only half the job:

The legal system of every country has as a major purpose the support of the existing political relationships. The lower criminal courts function as an assembly line in order to keep politics out of the courtroom, thereby leaving the status-quo unchallenged . . . . Legal ideology thrives on depoliticizing issues into abstract, external rules and process. Our job is to bring the reality of political relationship into the equation.

(Paul Harris, Warrior-Lawyer.) 

We don’t blog about the world that we’d like to have; we blog about the
world we have. The choices that voters make in elections at every level are going to affect how free we and our children will be. The criminal justice system is not above politics, and neither am I.

Politics doesn’t necessarily mean partisan politics. From the point of view of a practicing federal criminal defense lawyer, neither John Ashcroft nor Janet Reno was any better than the other. When our view is informed by our loyalty to a particular political party, we risk appearing naive and ignorant. Not that that should bother us. 

How does it feel to be arrested or prosecuted by a member of the other
party? I imagine that, if you’re going to feel unfairly treated, it’s
better to feel unfairly treated by someone for whom you didn’t vote
than by someone for whom you did. Here in Texas, judges are elected in partisan elections. In Harris County, the Republicans have had a lock for many years, and we suffer some miserable judges as a result. Same deal in Travis County, but substitute “Democrats” for “Republicans.”

I’ve got lots of clients who are Republicans. They’re shocked to see the injustice in Harris County that results from their voting habits. I’d bet that there are Democrats accused in Travis County who feel the same way. Both counties will be better places when neither political party thinks it has those elections sewn up.

I believe that a lot of valuable insight may be obtained from this entry and this thread of commentary in general.  In fact, this topic is one that I have struggled with since I began to blog in late August, 2008.  My solution has been to write about matters that impact the are where I provide my criminal defense services and to help educate the voters in Travis and Williamson County about who is in office and what that means to them.

So, yes, I have become political in that regard.  However, I have refrained from injecting political beliefs simply for the purpose of saying "Vote for Obama" or anything of that nature.

I have tried to say that people need to focus on "Change" and vote in such a way that they make the elected judges, district attorneys, and other officials be accountable to them for their actions and attitudes.  If that has not been clear, then I will try to be more specific in the future. 

However, I sometimes wonder if by being too vocal I am hurting my ability to represent clients in my area of practice by ostracizing myself from the perceived good-will of local judges and prosecutors.  I want to believe that would not be the case, and I truly hope that those persons are educated and unbiased enough not to hold my opinions and use of my 1st Amendment Right to Free Speech against me or my clients... but in some instances, I am not so sure that would be the case.

In sum, I cannot answer many of the questions posed by the contributor to Mark Bennett's mailbag, but I truly believe this is a topic that needs further exploration and discussion.

• Email This
• Print
• Comments
• Trackbacks