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

The inspiration for this article began when I was reading headlines and found one that said Judge Permits Flag-Desecration Prosecution in Nebraska.  This was referenced by one Mark Godsey, a criminal law professor.  So, as I read his article, I wanted to know more about the facts of the case and the ruling made by the Court, and I got very, very distracted... I've always known you could find anything on the internet, and this verifies it.

Given that there was a reference to the Defendant, Shirley Phelps-Roper, who is a member of the Westboro Baptist Church of Topeka, Kansas, I looked up both, and was amazed at the amount of traffic out there.  And, when you go to the church's link, pay attention to their URL.  To think that this is a "church" really makes the statement of Trust in God but Question Religion make more sense to me....

Check out this video for a really good taste for more about Shirley Phelps-Roper:

Yes, now I'm ranting, and this has little to do with me as an Austin criminal defense attorney, other than to point out that even people like Shirley and the members of her church deserve to be protected by the laws of this nation, to have the right to free speech, as protected by the Constitution.  I must be clear, I am not defending or condoning Shirley or her "church" but I am saying that she should not be prosecuted for flag desecration, assuming it was a form of speech.

More coming on the flag desecration line of cases... even though it may protect a hate-monger like Shirley and the Westboro Baptist Church.... Quite honestly, I'm surprised that the Baptist conventions have not taken it upon themselves to expel this "church" from their flock.

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When you, an individual, celebrity or not, are asked by law enforcement to admit to conduct that may be criminal or that you know you are caught in the midst of ...

remain silent.

You have absolutely no obligation to provide evidence against yourself.  Similarly, do not provide information if anyone asks... it can only fall into the wrong hands and be used against you.  Remain silent. 

The notion that owning up to a mistake will make things alright is not true.  Take Michael Phelp's issue for instance... regardless of whether or not he is arrested, charged, and possibly convicted of possession of marijuana, this is still a huge issue for him ... a smear campaign.  Don't apologize.  Don't make statements that may suggest wrong-doing, as Phelps has done... in short:

If something can be proven, let the government prove it, but do not help them by testifying or giving evidence against yourself.

Having set out my opinion, as a criminal defense attorney... here is what Michael Phelps should have said, according to my political beliefs and experience as a criminal defense attorney (read the following as if Michael Phelps authored it):

I am not going to admit any wrong-doing.  I am going to utilize my right to remain silent as guaranteed by the 5th Amendment to the United States' Constitution and also protected by each state's constitutions...

I am refusing to provide a statement or explanation because it is a private matter that occurred during my private life.  The fact that I am followed around by cameras and many people seek to diminish my name and accomplishments are up to those people.  But still, I will not admit wrong-doing.

Like most professional athletes, I work to cause my body to do things most other human beings have never accomplished.  And, it was done without the use of performance enhancing substances. 

So many people in America get upset when an athlete or other celebrity is believed to have used marijuana.  Some segments of society (many elected officials) have brainwashed much of America into believing that smoking marijuana is a horrible criminal behavior that must be stopped to save America.

So, to summarize, I do apologize for not believing that you have an interest in my health or in protecting society.  What I do believe is that some of you just get some twisted voyeuristic thrill from trying to topple a professional athlete / celebrity.  Afterall, what percentage of all Americans have tried marijuana at least one time in your life? 

(Best Regards, MP)

I wish Michael had written something like that or presented his "apology" in that manner.  Afterall, there are multiple noted marijuana smokers, including world-class athletes, Nobel Prize winners, at least three U.S. Presidents and Supreme Court justices, and other incredibly successful people from all sectors of business and the arts.

Marijuana laws are nothing more than pure hipocracy.  Those who rail against the use and possession of marijuana or have someone in their family who got busted with it should have to suffer the same consequences of anyone else but the harsh reality is that they do not.  To change my opinion of this, I would like to see some of the prosecutors, judges, and other lawmakers that have ever played a part in convicting someone of marijuana possession or PDP to accept the same consequences they dole out for everyone else.

Bottom line, we all know that money is the leading reason Michael did issue the apology.  I would be willing to wager that a series of meeting occurred between lawyers for each of the sponsoring agencies and Michael's attorneys and that collectively they drafted this statement that Michael issued.  Hopefully, Michael is just playing along if that is what happened because he really has nothing to apologize for.  I could continue to rant for pages ... but I'll stop here.

Legalize Marijuana.  Stop the SENSELESS prosecution of this minor "offense".  In fact, help turn around the American economy by allowing the government to tax the sale of weed... thus generating some income to help pay for all these bailouts ... just like it does tobacco and alcohol.

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From the title of this, a reader may be thinking, "... of course they do.  That is the motto of most if not all departments, it's written on their cars, it's in their training materials." But is it actually true?

To begin, Mark Bennett's Prosecutors Help People, But How Often? was the basis for this entry, as I have mentioned that my background involves me being both a misdemeanor prosecutor and a law enforcement officer.  So, I've done both.

As Mark pointed out above, another criminal defense attorney in Houston, Murray Newman, wrote:

... the thing I loved the most about being a prosecutor was helping victims of crime. There was a profound feeling of doing something important when meeting with the victim's family on a murder case, or the surviving members of an aggravated sexual assault, robbery, or assault and telling them you would do everything in your power on their cases.

I've said things like that, as a former prosecutor.  And there is some truth to it.  Mark calls it romanticizing the job, and to some extent that is true, but as Murray points out the same feeling is present as a criminal defense attorney... and for the sincere clients (which believe me is not most of them), there is a real sense of gratitude that just makes me feel good, and by analogy and my hypothesis, other defense lawyers feel they are really doing important work.

Now for the nuance to this whole idea... some cops believe they are doing good work.  Below is a compilation of reasons people enter into law enforcement, and by no means is it exclusive:

Well, there's the typical "I like to help people" which is bs for the most part. If that's the case, then be a doctor or nurse. I personally like the rush. I hate being stuck inside, behind a desk, though there is a lot of that at times. Definitely not for the pay, that's for sure.

Someone told my daughter, people become cops because they were picked on as kids, now they can pick on other people. Maybe that's true for some, who knows.

- - - - -

Personal reasons, family tradition, want to help others, want to make a difference, want to wear a badge, wan't to be worn by a badge, benefits. There are a lot of reasons and everyones would be different.

- - - - -

Helping, tradition, sevice, honor.

Lots of reasons. Soldiers are simularly motivated so are firefighters, medics, doctors etc.

Just as I have admitted, I probably said some of these things too when I was going through the application process, and looking back on that time in my life, I do not think I was being dishonest.  In fact, I know that I really did want to make a difference, but I very quickly learned that you cannot make a difference, except in those really rare and dramatic instances like Mark Bennett describes in his article.

In other words, simply making an arrest for any routine offense, be it felony or misdemeanor does not make for a better world.  Getting someone off the street because they had a single Vicodin or were driving on a suspended license does not alter the course of humanity.  Or, my personal favorite (understand there is cynicism and derision with which I say this) possessing a little marijuana....

To many officers, they truly believe they are making a difference and that they are helping the public by getting these people off the streets; however, when you get inside the system, you very quickly learn that it is not about protecting and serving, it is much more about ego trips and power hungry picked-on kids who have become adults bullies.  As an example, one officer that I rode with, who shall remain anonymous asked me,

In what other job can [sic] you drive fast and bust heads?

In sum, I do not believe that most prosecutors sink to this level of ineptitude and think that the majority of them, like Murray and myself, intended to do the right thing and really wanted to help people, but I definitely do not believe that of most law enforcement officers.

Please share your comments, experiences and of course... disagreements.

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Gregg Underheim, a former Republican representative from Wisconsin explained his vote during debate on the amendment for Wisconsin to ban "gay marriage".  This topic strikes me as one that will get more an more attention, hopefully in the Obama administration and in coming years, as so many loving couples cannot marry and have to try and set up documents that give them equal rights.  But rarely, do you find someone who is not part of "the movement" for GLBT marriage who provides an well-written statement.  Although this one is over two years old and this Senator ultimately resigned, I wanted to credit Mr. Underheim for his words:

"Constitutions protect individuals from undue intrusion into their lives by government. The right to free speech is a constitutional prohibition on governmental restriction. Freedom of religion is a restriction that says government can't prevent you from worshipping as you want. Passing this today will change the nature of the Constitution. This is anti-constiutional."

"Constitutions ought not treat gay people differently than anyone else. This ban moves us from protecting people to disenfranchising them."

"What we are doing today is wrong."

"This is an anti-constitutional act. In virtually no other area do constitutions prohibit indivduals from participating in a specific activity. We today are singling out a group of people and saying you will be restricted from engaging in a specific activity. What or who is next? We are now saying that it is acceptable that this document single out specific people. It is the wrong thing to do."

"What social policy are we going to put into the Constitution next? When the constitutions are evicerated, some college professor is going to look back, and ask, “How did this happen?” It was Republicans that decided to do that. How did that happen? The one thing the Democrats never did was this. They never wrote a constitutional amendment that ensconced social policy. The never sat down and said they were going to put social policy in the constitution."

"Today, we are crossing a line, a line the matters."

"We are crossing a line that says it is okay to put our policy preferences in the constitution for perpetuity. That is not the role of this document. We are so overstepping those bounds, it is frightening. We should not be doing this, and I hope that people on my side of the aisle will vote with a clear conscience."

[Hat Tip:  Tom Scharbach, author of The PurpleScarf]

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Many of Grits for Breakfasts blog postings receive numerous hits and initiate heated debate, but Williamson DA Sees Drug Penalty Debate as Turf War really grabbed my attention because it involves Williamson County, which is one of the places I practice criminal defense.

John Bradley, District Attorney for Williamson County, was quoted as saying:

If SJF drug cases become misdemeanors, the shift in workload from district to county courts at law would be substantial. In selfish terms, a DA with only felony jurisdiction (like myself) would suddenly have an enormous percentage of the caseload moved off the docket. A county attorney with only misdemeanor jurisdiction (such as my colleague in Williamson County) would suddenly find herself with lots of new cases.

This would be an extraordinary movement of resources for no reason other than someone deciding to reclassify the crime from felony to misdemeanor. Punishment would require county dollars (in county jail) rather than state dollars (in state jail)....

The discussion became more heated in the comments that followed Grits blog entry.  Although several of them made very valid points, the one in particular really made a point with me:

kaptinemo said...

How many times must the system be 'tweaked' before the recognition is made that it is the system, itself, that is the problem?

The 'system', in this case, is drug prohibition, which is the font of the complained-about caseload. Prior to 1914 and the Harrison Narcotics Act, which Federalized drug 'crimes' such as possession, we didn't have these problems...or caseloads.

Why bother playing around with trying to unravel the Gordian Knot of drug prohibition and all its' baggage? We've been trying to do that, to the tune of a trillion dollars since 1968, and we're no closer to achieving a drug-free utopia now than they were back then...as the complained about caseload demonstrates. A caseload we can no longer fiscally afford. It's long past time to consider the once unthinkable, and to speak the once forbidden, and talk about alternatives to the present - and punitive - DrugWar.

Now, in these difficult economic times, it may really be time to try something new, and different.  I will be the first to admit that the legalization or the decriminalization of all drugs or even most drugs may not be in society's best interest, I am willing to consider alternatives.  I absolutely agree that these SJF crimes should be reduced to misdemeanor offenses, as too often people are being convicted of felonies for miniscule amounts of an illegal substance.  Even when these people are given deferred ajudication probations, often the conditions are so stringent that a saint would have a difficult time completing them.

So, as kaptinemo wrote about fighting the drug war and spending trillions of dollars, which I agree is a worthless fight and an unwinnable one at that, I propose the following:

• legalize the possession of less than 2 ounces of marijuana;
• criminalize its use when driving (similar to DWI, afterall, is pot really any worse than alcohol);
• allow the government to regulate the sale of marijuana and tax it (similar to tobacco); and
• reduce the levels from SJF to misdemeanor offenses on other drug crimes.

This process would guarantee that the marijuana is not laced with something more addictive or harmful and would allow the government to create revenue to help pay off its trillions of dollars in expenses.  Not to mention, not fighting the "war on pot" would save counties, states, and the government in general large sums of money (purposely I am being vague as I do not have a figure to write).

Further, it would save money on prosecutions and those convicted of the SJF amounts of other substances.  And, as to John Bradley's comment about shifting the burden of work to another office, I believe this would only allow a couple of things to happen:

• assistant district attorney's would have more time to review and handle the other, "more serious" cases; and / or
• given that these ADAs are also county employees, nothing would prevent them, aside from politics, from working on some of these lower level cases, unless the agencies in question absolutely refuse to work together or share responsibilities; afterall, both are paid by county tax dollars and both work for "The County".

To conclude, pushing more people into the criminal justice system, whether it is by placing them on probation or putting them in jail or prison is not the answer. We already have the highest percentage of our population involved in this system, at least among the developed world. 

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So another Bill has surfaced that would attempt to take away the constitutional rights of Texans and anyone else driving through this State.  This piece of proposed legislation would arguably remove the "innocent until proven guilty" presumption and replace it with a presumption that the State could use to argue the driver was intoxicated if he or she was stopped, arrested, and provided a blood or breath sample greater than .08 within one and one-half hours of that arrest.

House Bill 170 is another piece of legislation aimed at making the State's job of convicting its citizens easier and shifting the burden to the Defendant to prove that he or she is in fact not guilty.  I for one can say that I am not interested in living in a place where there is no presumption of innocence and where the burden is on me to prove that I'm not guilty of a crime.  In relevant part, House Bill 170 reads as follows:

Article 38.24 Evidence of Alcohol Concentration

(a)    In this article, “offense relating to the operating of a motor vehicle while intoxicated” and “offense of operating a watercraft while intoxicated” have the meanings assigned by Section 49.09, Penal code.

(b)   For purposes of the prosecution of an offense relating to the operating of a motor vehicle or watercraft while intoxicated, it is presumed that the person had an alcohol concentration equal to or higher than 0.08 at the time of the offense if that level of alcohol concentration is shown by an analysis of the specimen of the person’s breath, blood, or urine taken from the person not later than 90 minutes after the time of the person’s arrest.

To be clear, this section is not currently in the Texas Code of Criminal Procedure and is only proposed legislation, but we all need to hope that it does not pass, unless of course you are interested in giving up more of your constitutional rights and protections.

For others like me who are interested in tracking the life of House Bill 170, this website shows when it was introduced, and how activity on it compares to those of other pieces of proposed legislation.

In general, a presumption is a fact assumed to be true under the law and they are typically used to relieve a party from having to prove the truth of the fact being presumed.  As Jamie Spencer pointed out regarding retrograde extrapolation:

 

Retrograde extrapolation is the mathematical/scientific process by which an estimated BAC range for the time of driving is deduced/guessed by taking the BAC at the time of the test, the time since driving and other factors. These factors include when the suspect drank his last beer, .eg., to his last meal, and other considerations.

 

These are ultimately unknown factors no matter what the pre field sobriety test interview question and answers reveal from the defendant. And therefore, there’s room for some of that old reasonable doubt defense attorneys like to try and raise.

 

Since this is potentially a problem for the prosecution, they want to write into the law an unscientific instruction that allows them to argue that any test over .08 given within an hour and a half of driving automatically gives them a presumption of guilt.

To conclude, this is another piece of legislation being propelled forward by those who would favor arresting everyone and shifting the burden of proof to them to show their innocence.  As I have requested in the past, if you are interested in demonstrating involvement in your government, asking your State Representative and Senator to vote no on this legislation is a good start.

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Last week, while lunching with three other attorneys and the best assistant anyone could hope to have working with them, the topic of "victimless crimes" came up ... particularly, prostitution.  We tossed around the idea of legalization and some of the pros and cons to that.  We talked about the double-standards that seem to be in place and how we, as criminal defense attorneys, see the women who often get repeatedly arrested for offering oral sex for $10 and more for $20.  We pondered the points of how this could be "fixed" if that is possible at all.

For purposes of this article (and any others I write on this topic), I am going to use the feminine gender when referring to prostitutes, though, I will be the first to admit that there are male prostitutes, and that this is by no means a phenomenon unique to the heterosexual world, as there are also gay, lesbian, bi-sexual and transgendered prostitutes, too.  Likewise, this article is not intended to be a put-down of women or of prostitution in general, in fact, I am here to advocate that prostitution be legalized and regulated, much like it is in Germany, other European countries, or even here in the United States, in Nevada.

When a woman is taken to an upscale Manhattan apartment, or even called and invited to one of the hi-rise downtown Austin condos, she is considered "an escort" and this largely goes un-prosecuted.  However, when a woman gives some guy oral sex in an alley, or they decide to park a car and engage in other sexual acts, or even if they rent a room at a cheap local motel and go "trick" there, that woman is a prostitute, a whore, a slut by the double-standards that are propigated by our society.  Why is that? What's the difference? Is this right? What can be done about it?

The simple answer regarding the difference is money... like so many other points, it all comes back to the dollar.  I believe there are two groups:  those who can afford to hire escorts + those women beautiful enough to work through an agency vs. men who cannot afford the high-end, expensive escort + the woman who is struggling to survive and trying to make anything she can.  

Most escort agencies attempt to claim that they are dispatching models to provide a social or conversational service, since prostitution laws often forbid taking payment for sex or for the purpose of arranging a contract for sexual services.  Law enforcement generally knows about these escort agencies but neither they nor the political powers typically act against them, instead, the focus is more towards the visible, street prostitution.This clearly sounds like a double-standard, or as hipocrisy.  And these are differences that I want to discuss, but am recognizing as I write this entry that this topic alone could branch into multiple posts, as it is too much information for any one entry.

In writing this article and after the lunchtime conversation, I began doing a little research and found some very interesting articles.  The best I found is from a former escort, Amber, and she runs a blog on the topic.  I have not read all her posts as they seem to be very detailed and quite lengthy, but it is definitely on my must read list, as I think it will provide much insight into this line of blog entries I plan to complete over the coming weeks.  Until then, I would really appreciate any feedback that could be provided by anyone reading this posting.  I very much want to know your opinions, regardless of perspective, on the topics of prostitution, and whether or not it should be legal in the United States.

more to come....

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On Monday of this week, I had lunch with a friend and colleague of mine, who's name I shall not mention due to the nature of his work in the Texas Legislature, who responded to my disdain for Senate Bill 261 with the statement, "But is it Good Public Policy?"

I was stunned that he would say this and not simply agree that the proposed changes to DWI laws in Texas and to the eroding of civil rights as set out by both the federal and Texas constitutions were in jeopardy when such legislation is introduced.  The reason that this was surprising to me is that until he recently acquired a position in the Legislature as one of the Member's assistants (title unclear), this guy was a criminal defense attorney.  He worked to get people out of jail.  He did what he could to keep them from going back to jail... and, he was very successful at his craft.

This person is now working in a job that he enjoys and experiencing a view of the law that he's always wanted to pursue and until recently just did not have the opportunity.  And for that, I applaud my friend.  But, to have him turn his back on a statement that almost, if not all criminal defense attorneys would agree with regarding Senate Bill 261 and its progeny, was like a slap to the face. Had my friend and colleague betrayed me? Had he really switched sides (as I was accused when I left law enforcement to open my own law office)?  Of course he had not "betrayed" anyone, but it made me think, so....

I laughed it off and pondered the point for a few days before drafting this article--successfully managing not to say something that I would later regret.  And, I do not think that he intended to be derisive or to offend anyone at the table.  Honestly, I believe that he may not have known the extent that Senate Bill 261 strips people of their constitutional rights, so we discussed it briefly, and then the subject changed, without further ado.  However, I will not jump to the conclusion that the conversation was Much Ado about Nothing, to quote a little Shakespeare, as it inspired me to write this entry and again bring Senate Bill 261 to light.

My first post on Senate Bill 261 which labeled it as Frightening expounds on the issues I have with this piece of proposed legislation.  And, to spare my readers from repetition, I am merely going to provide the link to the article for your review.

So, is the question really "But is it Good Public Policy" in the Legislature or is it more about what lobbys control which votes and who can pay the most? Now I sound like a complete conspiracy theorist to make such an accusation, but is it really that far off point? There's a lot of good public policy out there that never makes it out of  committee because of the cost associated with a program's implementation, which, one could argue makes it bad public policy because of the financial drain it may have on the State's resources... but does cost alone make something "bad public policy?"

To summarize, I suppose that the question my friend raised would not have nagged me as much had I thought he was serious and sincere in the question, "But is it Good Public Policy?" Instead, when he raised the question, he laughed, smiled really big and then the conversation went on. And no, he was not just "teasing me" about it because others at the table asked him about it and he replied in the same manner.

When I goaded him a little bit and we discussed it, the subject just changed.  I fully respect if someone really believes that something is "good public policy" and stands behind it, just as I am arguing that Senate Bill 261 is a really bad idea, but if someone is just arguing that it is a public policy issue simply because that is the job he's taken on for the moment, then I am less appreciative because those sorts of changes in the law have lasting consequences and affect every person in Texas.

Thus, urge your Senator and State Representative to vote NO on Senate Bill 261, preventing it from ever seeing the light of day.

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Mark Bennett, a fellow blogger posted a detailed post citing reasons not to go to law school.  Below is a brief excerpt of that article, but it is available in its entirety here.

Even assuming that other opportunities would not have appeared in the ten years you would have (had you chosen more wisely) spent in the workforce, and that the contract work isn’t offshored to India, ten years after you begin you’re just starting to break even.

What’s going to happen in your life in the next ten years? What has happened in the last ten? What’s going to happen in the world in the next ten years? What’s the practice of law going to look like?

While in part I agree with what Mark is saying ... that the money may not be the same in law as it once was, it remains one of the better professions, especially if you are motivated, personable, and want to practice law.  And, just because the money is not as high as it may have been, what is growing, besides healthcare? And, as long as the insurance lobby continues to hold sway over lawmakers, who knows how much longer that will be true....

However, I cannot agree with Mark's assessment that I quoted above.  To answer those questions one would have to see into the future.  While it may be that the economy is in recession and that the next few years look bleak, that does not mean someone should not go to law school because the world will always be changing, the practice of law will evolve to meet society's needs, and someone has to be there to help people sort out their problems.

Please keep in mind, I'm writing this from the perspective of a solo practitioner.  I am also writing this from someone who has tried on various hats within the legal arena and took several years to find the perfect niche for me.  I was first a prosecutor, enjoyed the work, but felt that there was no room to advance, at least not as quickly as I would have liked.  Looking back, that was just impatience on my part -- people who started after I did are now in elevated positions within that office.  Is that saying I regret my decision to leave... not today.  Would things be different had I stayed, possibly.  Did I make a bad or wrong decision by leaving... absolutely not.

Then, I went into civil litigation, insurance defense work.  I really liked the people that I worked with but the type of work was not for me.  I wanted to develop a criminal defense practice, where I could work with people and help them with real problems, rather than just shuffle documents and try to minimize insurance companies expenses.  If this is the area that Mark is really focusing on, then I would tend to agree with him more, as the limitations and restrictions that were being implemented by insurance companies made doing the work very difficult, when backed up against the demand of partners wanting you to bill X hundred hours per year.

Finally, I opened my own office, and I do not regret it and will never go back... unless something unknown to me at the time I am writing this entry forces me to do so.  That being said, this goes to the future predictions and unknown factors that Mark seems to raise.

To conclude, I would agree with Mark that if the motivating reason for going to law school is money, then don't do it, because it is not what it once was, but I would disagree in that law school will not pay for itself.  However, if you want a solid, well-rounded education, which no one can take from you no matter what, then law school is an excellent way to go.  I thought it was ludicrous when I heard, "We teach you to think like a lawyer..." but law school really does.  You will leave with the ability to see things from multiple angles and perspectives.

And remember, the market is changing, jobs are off-shored, but being flexible and finding your niche is what really is important.

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