Mean, Sick, Cruel "Activists" ... all in the Name of God ... Prosecuted for Flag Desecration???

Posted on February 12, 2009 by Dax Garvin

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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Plea Bargains that Involve a Reduction of Charges: DWI to Obstructing a Highway, for instance...

Posted on October 29, 2008 by Dax Garvin

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....

I've had some recent DWI cases plead to Obstruction of a Highway. In each case my client was charged with a DWI, and the case had problems. The choice was between having a DWI jury trial, or pleading guilty to Obstruction.

What is Obstructing a Highway? Read this earlier post.

I usually, if not always, recommend taking the Obstruction plea rather than go to trial on the DWI.

Why?

1. A DWI Lasts Forever
In the past, a DWI conviction had a ten year limitation for enhancement. That is, if you got 3 DWI's that were each 11 years apart, the State couldn't enhance your case to a felony (DWI 3rd is a felony in Texas).

Not any more. The lege changed the law so that a DWI conviction can be used against your FOREVER. That is, if you get a DWI in 2008, and another in 2028; then the original 2008 conviction will be used to "enhance" your 2028 case. That is, the punishment is worse (from Class B to Class A misdemeanor). Every client I've had with a DWI charge states they will never drink and drive again. However, forever is a long time.


2. Surcharge
A few years ago a doltish majority in Austin found a great way to balance the budget. Instead of cutting spending the lege invented millions of dollars in revenue from "surcharges" they would collect from those convicted of DWI. In theory those convicted of DWI are supposed to pay at least $1,000 a year to keep their license. In practice, most of these fees are never collected.

These "surcharges" should be unconstitutional (double jeopardy) in that they punish a person twice for the same offense. DWI suspects already face fines, fees, court costs, and forced donations to MADD (victim impact class). Unfortunately Texas appellate courts are more than willing to justify constitutional violations in DWI cases.

By pleading to OAH, clients don't risk the possibility of paying thousands in extra "surcharges" just to keep their DL.

3. Jury Trials
One of the services I offer is taking an uncertain criminal situation and providing guidance and direction to my clients. I am in the certainty business. When my clients are offered and OAH plea I can guarantee the DWI will be dismissed (not expunged though). With a jury trial, there are few things I can guarantee. Most defendants aren't exited about the idea of having a jury trial. They would much rather take the certainty of an OAH charge.

Even with a strong case for the defense I can't guarantee a jury will find a client not guilty. The State has professional coached witnesses, and jurors are inundated with DWI propaganda. With those factors working against the innocent, an OAH plea can be a great resolution to a DWI case.

Having set out Robert's entry in its entirety, my comment goes to the State's attitude in offering these sorts of "deals".  Like Robert pointed out, for a client to be offered a plea bargain where they do not take a hit on their criminal history for Driving While Intoxicated, the case usually "has problems".

These problems could be with the officer's evidence (bad video or audio), or it may be that the client does extremely well on the SFST's and the only evidence against the client is what the officer observed, allegedly, in the eyes while conducting the horizontal gaze nystagmus (HGN) test.  Or, the problem could be with any other combination of factors.  Setting those possibilities aside...

It troubles me that most State prosecutors will not just dismiss the case, if it has problems.  They are out to get something from the client ... even if it is this reduced charge with reduced penalties.  To be clear, I am not complaining about reductions in general, but the attitude that often accompanies the reduction..."well your guy is getting lucky today". This happens in Assault Family Violence cases all too frequently.

While it is a heck of a deal to avoid a DWI conviction, if the evidence is lacking, for whatever reason, shouldn't the prosecutor just acknowledge that and move on? Aren't we tired of allowing political lobbyists to dictate what our prosecutors can and cannot do (thank you M.A.D.D.). The burden of proof is on the State and as such, I wish more prosecutors would acknowledge that fact rather than insisting on "just getting a conviction" and being so "stat driven".

And one other point, we all must be careful in how these "agreements" are prepared, because as I read the law, Obstructing a Highway, which is a very common plea agreement for a DWI is not a lesser included offense of the original charge and therefore could allow an overzealous prosecutor to refile the original charge....See, Hill 521 S.W.2d 253, 255 (Tex.Crim.App. 1975).

 

 

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Dildos & Sexually Obscene "Toys" Illegal in Texas ... for now

Posted on October 8, 2008 by Dax Garvin

So the moral police are at it again and this time legislating from the bench.  Texas went from banning dildos, vibrators and other "obcene toys" to allowing them under a declaration of the law being unconstitutional, and back again to a ban, at least in Corpus for now.  Robert Guest wrote about a Court in Corpus Christi ignoring the ruling of a higher level federal court declaring that a Texas law banning "obcene" devices (dildos and other toys) to be unconstitutional:

§ 43.23. OBSCENITY. (a) A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device.

An obscene device is a dildo, vibrator etc. Of all the things to waste law enforcement resources on, dildo prohibition is probably the most useless (marijuana would be a close second).

This brings us to a recent decision by the 13th District Court of Appeals in Corpus Christi-

Villareal vs. State
Facts (from the court's opinion)-

On June 25, 2004, Corpus Christi Police Officer Adrian Dominguez was working undercover when he visited a business, called Friends 4 Ever, to determine if it was selling obscene materials or devices. Dominguez was aware that law enforcement agents had previously informed the business owner that the business needed to cease selling certain items that were considered obscene under state law. Appellant was at the business working as a cashier and sales clerk. During the visit, Dominguez purchased a vibrator from appellant; the vibrator was called "Lick it Lover" and resembled the male sexual organ. A few hours after Dominguez's purchase, police officers arrived at the business, where they executed a search warrant and placed appellant under arrest.

You would think that a city with twice the national average for property crime, and 21 murders annually could find a better use of their undercover police. But I digress. A jury found Villareal guilty, and the judge sentenced her to 6 months in county jail!

Wait a minute, wasn't that law declared unconstitutional?
That's right. The federal 5th Circuit Court of Appeals issued an injunction in February declaring 43.23 unconstitutional. However, the Court of Appeals in Corpus Christi held that a federal court injunction is not binding on State courts. That is, until our state's highest criminal court, the Court of Criminal Appeals, rules that 43.23 is unconstituional, the conviction still stands.

Now, it's clear that the judges in Corpus recognize how untenable their  position  is. In their own words.

This Court thus remains duty-bound, for better or worse, to follow the rulings of the court of criminal appeals, which has held--in contrast to the Fifth Circuit--that section 43.23 does not violate the due process clause of the Fourteenth Amendment.

Why is it that Amerians have such a tyrannical view about sex? Oh no, someone has a dildo.  Oh, what are we going to do, that is not "normal".  After all I am seeing and experiencing, this is clearly a matter of this country having forgotten where we came from (multiple parts of Europe) and fleeing social and religious oppression... well, guess what, it looks like it is back.  Only this time, there is not a land mass the size of the United States for those of us just appalled to move to and start a new country.

It is a basic principle of the judicial process that a State cannot give to one of its residents less freedoms than those provided by the federal system, thanks to the Fourteenth Amendment -- Due Process clause.  The real idiocy here is that the judge in Courpus Christi writing the opinion even recognized that.  Hopefully, that judge will face some sort of sanction or other penalty for simply ignoring a higher court's ruling.  Or, maybe the voters will realize they have someone in office who should not be re-elected....

Until then, and at least in Corpus Christi---adults, be ware.  Do not sell dildos, vibrators, and other adult-themed toys.

And in the mean time, if you can find it, watch this weeks episode of Boston Legal--one of the primary cases was about a sexual surrogate (mom) who was in the middle of a heated battle to retain custody of her daughter, as his father wanted to take her away (saying that mom was unfit).  While I have mocked that show repeatedly, it is fun to watch sometimes as the characters say and do things that all of us lawyers have thought but few of us have done in order to avoid "contempt".

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The Jean Ponzanelli Case--Another Williamson County "Victim"

Posted on September 25, 2008 by Dax Garvin

An article about Jean Ponzanelli, one of Keith Lauerman's clients is very well written by KXAN and lays out the facts of a case that occurred in Williamson County in the past couple of months.  I hope that you all will go and read that story, it really offends me to see what has happened in the "justice" system and further it causes me pain to see how so many of the elected officials think and respond to cases in Wilco.  Very little of these comments surprise me as I have worked in Williamson County, not only as an attorney but also as a deputy at the Sheriff's Department (No, I never directly observed corruption but I definitely sensed a depraved sense of justice before I left).

While I was reading through the comments to the KXAN article, I came across this one posted by Shocked in Wilco:

I think it is very important for people to know the girl was 2 weeks from turning 14 and she lied about her age! Jean was 17 years old! Their was no assault! The sex was consensual. Jean is not a man he is a kid! He will go into prison a kid and come out a criminal! Where is the justice in this? All district judges in Williamson county have been appointed! NEVER elected by the people. No one will run against these people. People in Williamson County should be afraid. Maybe next time it will be your child that is sent to prison for just a foolish judgement call. Teenagers have sex and many of these young girls are advertising for sex on their My Space accounts. Why isn't the girl going to prison? What a sad day for Williamson County!

I agree with the point that Shocked is trying to make but I wanted to take a moment to clarify some things...

  • The elected officials prosecutors / judges, both County and District, have been elected -- but most have run un-opposed, meaning without an opponent, because...
  • Williamson County, over that past 10-25 years, has elected Republican candidates and thus Democrats have not seen fit to run against them--spending the thousands of dollars necessary to run an effective campaign...so,
  • If people are aware of what is going on and that miscarriages of justice like this one occur on a fairly regular and in a frighteningly routine manner, get out a VOTE!
  • When Democrats begin to win or at least show that they can be competitive and come "close" to winning... things may begin to change.
  • Even if a new candidate does not win, a close race for an incumbent is likely to make him or her a bit more moderate... because it would be clear that the people will not tolerate the "old ways" of Williamson County.

So, voters in Williamson County -- pay attention.  It may only be a matter of time until an allegation is made that affects you or someone you care about and you find yourself in the harsh clutches of the criminal justice system there....

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America's Face (as determined by the Supremes)....

Posted on September 23, 2008 by Dax Garvin

I had originally planned to omit the inclusion of anything considered "political" in this blog but the more I have considered that position, the more I have come to the conclusion that by its very nature a blog is political, its goal is to inform, so this will be my maiden entry into the polical realm.

Here an editorial in the New York Times reports on the possibilities of what could happen, and it is all speculation, with the United States Supreme Court Justices under our future president....

As a criminal defense attorney and someone who wants to maintain civil liberties, of course I am supporting the more liberal, well-rounded of the two tickets: Obama/Biden. 

In recent years we have had challenges to search and seizure issues and even an opinion that upheld searches when the arrest was considered bad (the case is escaping me at the moment, but when I think of it I will come back and edit this entry).  Of course we have had challenges to abortion and the death penalty and will probably continue to have those raised.  Heck, even Miranda which so many of us can quote was challenged in the not so recent past.  Much of this has been done in the name of the Patriot Act....

There are so many issues that will have long-lasting impacts on this country please, please think about what kind of world you want to age in and what kind of world you want your children to live in.  Do you want them to have choices and freedoms? Remember, Supreme Court Justices are there for life... meaning, the rulings they make will shape the country for decades to come.  

Setting aside the economy and Iraq, both of which are HUGE issues, the Supremes as determined by the next President of the United States will have a long lasting impact on our world.

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When did Judges become Preachers?

Posted on August 21, 2008 by Dax Garvin

Today in court I was sitting in the gallery with my client, waiting for the case to be called, and one of the cases ahead of us was a plea and sentencing.

Granted, the defendant was admitting her guilt to the court for some sort of forgery charge, I was not her attorney and had not seen the file, but regardless, I was astounded at what the judge did.

Not only did he fulfill his judicial obligation by reviewing the paperwork and ensuring the defendant's competency to go forward with the proceeding, which is not only required but expected, but he began to preach...

Now, I grew up in a Southern Baptist Church and was immeresed in that point of view for longer than I care to remember, but the judge really reminded me of some of the preachers that took the pulpit when I was sitting there as a kid, afraid of burning in hell for all eternity.

This judge, who is supposed to be neutral, proceeded to lecture this defendant about his opinion of her "having committed 4 felonies in 3 years" and lamenting the fact that she could not be sent to prison for 25 years to 99 years.  He then began to berate the legislature for inventing the State Jail Felony system.  He even commented that "he wished he could do more to punish her".

Wow, sounds like this judge and many like him need to remember that none of us are perfect.  I wonder if he practices what he preaches?  If not, I like to imagine how he may feel were he to be so dehumanized like he put this lady down.

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