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

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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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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Congratulations, Rosemary.  Taking the reigns of such a large and political county takes a lot of experience and will likely require a sincere amount of finesse.  I wish you well, and am confident you will maintain the high-level of integrity that Travis County already has.

As a criminal defense attorney, I really appreciate your offices' policies on discovery and willingness to look at each case and the individual, unique set of circumstances that it brings to the table for consideration.  Not all cases can be handled with a cookie-cutter approach, and not all cases should be handled in that matter.

Welcome to the helm! I look forward to working with you and those in your office.

For anyone who missed it, this link shows the swearing in of the new District Attorney.  And below is a photograph of the new DA from recent months.

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Pro Life? Pro Choice? Those are choices that every one of us can make as a free-willed, able-bodied adult who can vote.  Likewise, it would be something that is best left to each of us as an individual: to place bumper stickers on our vehicles, to vote for candidates that support our point of view, or to even participate on one side or other of the debate... and, some would argue that opting for one of the proposed license plates that says "Choose Life" it would be one method of doing just that.

However, unless there is a Pro-Choice alternative available, I do not believe this plate should be available, particularly if it is one backed by the Texas Governor, Rick Perry.  While politicians often take stances on issues like abortion, given that this is a method of fund raising for one side of argument, it seems inappropriate. 

We all know that Texas has gone the way of becoming dangerously conservative in the past few years, having spawned the likes of the Bushes and our current governor, but this is more than we should tolerate.

I completely support free speech, but I also support equal choice.  As it stands, there is not a proposal for a Pro Choice plate, and unless that is also available, I would urge the Texas Legislature not to pass "Choose Life".

Without getting into the politics of the abortion debate, I really believe that all should be represented or none should be represented, especially if the government is going to leverage the argument by collecting funds and donating a portion of the proceeds to the debate.

The story was reported here on a local news company's website.

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Everyone reading this probably remembers Dr. Jack Kevorkian and the trial and sentencing he endured as a result of the assisted suicides several years ago.  Well, he was released from prison after serving approximately 8 years of a 10-25 year sentence.   While looking through the news this morning, I was intrigued to see a posting that makes me think the topic may find its way back into the forefront of the news due to an article on MSNBC.com.

It appears that in 2006, Craig Ewert, traveled to another country where assisted suicide is legal and sought the assistance of a clinic there to end his own life, which was terminal and unpleasant for him anyway.  This topic, like so many that are legislated in the United States, falls back on the question of ethics and the role of religion in politics and law-making.

Now the basis for the story linked above may be a bit "out there" in that the Sky network intends to broadcast Mr. Ewert's death on television.  How that could be helpful, I am not certain, except to show people that it was a peaceful death, where he virtually falls asleep... possibly in an attempt to educate and inform people about assisted suicide.

It is frustrating to me that there are opponent groups that oppose an adult's personal decision to obtain assitance with suicide.  While I understand that these groups may have religious concerns for the person contemplating suicide, I still believe that the decision should rest with the individual.  It is not a situation where others are deciding to execute someone and do so in the name of "suicide".  

Finally, if someone really wants to end his or her life, there are many ways to do it, assuming the person is physically capable.  At least allowing someone to make an informed decision about his or her life leaves them with a small amount of dignity and self-respect.  Thus, I must salute Dr. Jack Kevorkian for his efforts in assisting people with what is probably the hardest decision they ever made in their lives, although, I do not agree with his unconvential tactics.  I also must thank the State of Oregon for having enough common sense to recognize that putting a measure in place for adults to make decisions about their own mortality is the right thing to do.

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So by now, anyone who has read my blog knows that I am a former cop, and anyone who did not know that and may be reading this for the first time, let me explain.  For about two years, I worked at the Williamson County Sheriff's Office in Georgetown, Texas as a law enforcement officer.

My reason for today's posting is a little bit personal because I just complete a consultation with a client where the charges were "piled on".  Is it legal? Yes.  Is it common? Unfortunately, yes.  Is there anything that I can do about it? Not really, other than just deal with the charges that were filed.

But, I want to take a few minutes to examine why officers take the time to do this.  It is something that I simply did not do, maybe because I was more forgiving than many, but it has always been a practice to me that just seems a bit offensive.

So what is "piling on" as I am referring to it? The art of taking a simple matter and making it more complex by filing multiple, insignificant charges.

What got me to thinking about this matter? Aside from stories I've been told by friends over the years, a client meeting that just concluded triggered this response.  I had a potential client come in to discuss a Class A misdemeanor charge that stemmed from the traffic stop, where he was the passenger.  And, despite his cooperation, which was only to his detriment in many ways, he was also cited for two Class C (traffic level offenses).

Practically, this means that the client now has to go to two different courts to resolve the matters, and for an attorney to represent him in all the charges, he or she will have to go to multiple courts and file extra motions, etc.

Wouldn't it have been easier just to instanter the charges, which means to file them in such a way that they would be dealt with along with the higher degree offense? I think that it would have been easier; however, I sometimes think that officers are trying to be punitive.  That is, they take their job so personally that they want to punish the person being charged, even if it is by making their situation more difficult....

Why?  I still ask that question.  There is no reason for doing it.  In this case, the person was arrested, spent the night in jail until he was released on bond, had his vehicle towed, and now must face the charges in two different courts.

My only rationale for cops "piling on the charges" is to think that it is either 1) a lack of compassion on their behalf, or 2) a true malice and dislike (assumption of guilt) of the person they are charging.  But to close, there is nothing I can say about the matter as it is perfectly legal, but it just seems over the top and too aggressive in my opinion.

We all need to treat others the way we'd like to be treated...

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So on the eve of Thanksgiving Day 2008, I decided to write something personal.  Not knowing for sure if this is something that someone will want to read, as it is not directly "law related," which is the general focus of  my blog, but it does give insight into who I am.  Briefly, I will discuss what is contained on my resume in the "About Me" section of my website, but here, I can reflect a bit more on why I took the path I took and how those pathways affected me.

I started working at the Travis County Attorney's Office as a "baby prosecutor," which is slang for someone directly out of law school.  While there, I learned a lot and met a number of really professional, helpful people.   I did not stay there too long though as I had a lot going on in my personal life and being 25/26 years old, I thought I "had to make more money", so I took an opportunity at a civil defense law firm in Austin.  

While working in private practice, I really missed criminal law, as I had developed friendships with multiple criminal defense attorneys, some officers, and other prosecutors while at the County Attorney's Office.  I missed the personal interaction that showed up through the resolution of those cases.  In general, it has been my experience that the criminal bar to the legal profession is far more friendly and accepting than the civil side... yet, I cannot answer why that is to this day.

I tried to get the firm to allow me to develop a criminal defense practice within the firm, truly believing that it was something missing.  However, the partners in charge did not want to take the firm in that direction.  I truly believed this was something I had to do, so I began to ponder how to make it happen.

I viewed myself as a young attorney with a lot of potential but also as someone with a lot of uncertainty (in how to develop a criminal defense practice) ... due to all the expenses and issues surrounding owning your own business (I'll leave it at that for now).

So, I elected to get into law enforcement and found myself working at the Williamson County Sheriff's Office.  Having made some friends in officers and gone on ride-outs, I knew it would be fascinating and thought that I would make a great officer.  Granted, I knew at the outset that I would be less strict about "small issues" (the wonderful exercise of discretion) than some, but I thought that would be my way of contributing balance to the profession, which is too often overrun by literalists and officers are are just too strict (sometimes to the point of being hypocritical).

When I was asked during the oral boards / interview process where I would be in five years, I truly believed that I may be in the same department, doing what, I did not know.  I never entered into this fully intending to leave or as a spy as some departments had suggested... nor, had I entered into it knowing that I was going to open my own office, remember, I had my insecurities and worries about that. 

But, as the years ticked by and I saw how law enforcement really functioned, not just at my department but at conferences and in blogs and even foreign exchange programs (yes, I was fortunate enough to travel to Germany for three weeks), I began to realize that I did not fit in this profession either.  And, I finally developed the courage and the opportunity arose that made taking that logical step into my own practice a must.

So, in June, 2008, I opened The Law Office of Dax Garvin.  I have never been happier or more content with this decision and thus want to share my gratitude.  And, on the eve of Thanksgiving, I could not think of a more appropriate time to do this.  I feel that I have more to be thankful for this year than in years past, as I am not sure I would have taken this step without walking down the unconventional pathways that I did.  It was my time in each of the three prior offices that shaped who I am today and made it possible for me to open my own office. 

So to every single person out there who I have met that contributed in some way to me taking this step, I must say, "Thank you." No matter how small or how large of a contribution you had in my decision or in what way you contributed, be it moral support, mentoring, the lending of forms, or the sharing of space, or just being a friend, I am truly thankful for your assitance and having known you.

And in sum, I believe it is this attitude of sharing that shapes who we are as a society and the pathways life takes us down all do lead to a focal point at some time in our lives.  You may not know when it will happen or what it will be, but when you get there, you'll know you have arrived.

So again, I want to say "thanks" to everyone who had a hand in getting me to where I am, and I look forward to being able to repay that favor by being a similar influece on others pathways.  So, I hope that this blog is a step in that direction.

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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 ....

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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.

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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.

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While writing my entry about police lineups v police show-ups and whether the process should be banned or modified, I came across the following comment by DCFriscoTX to the article, State Senator to Propose Ban on Police "showups' in Texas:

It is terrible that innocent people have to go to prison, executions, etc.
At the same time, America needs to come to grips with a decision - do we allow a few innocent people to be jailed to insure that more violent sociopaths are taken off the streets?

Do we let 100 criminals walk in order to insure that one innocent person is set free?

3rd world countries have no moral dilemas over this. What US needs to remember is that this country is quickly turning into a 3rd world country and will continue the slide unless we make a stand... a tough decision... a heavy price.

Personal freedoms vs. betterment of society. the two do not always go together.

Rather than beat your head against the wall over it, why not teach our kids and citizens to avoid being in the wrong place at the wrong time, to avoid guilt by association?

This country is becoming extremely dependent on the government for everything, including babysitting its citizens. How about being responsible for your own actions?

Law enforcement is increasingly used for breaking up activities, not enforcing laws and prosecuting offenders. Judicial sytem is a revolving door, heavily influenced by politics, media and lobbies... Tabloid justice.

And please, let's leave race and ethnicity out of this....

I will not chastise everything that DCFriscoTX had to say, but the fact that anyone would have this viewpoint, if they are at all educated just amazes me.  So, let's start with what I agree with that DCFriscoTX had to say:

1. Avoid being in the wrong place at the wrong time, and teach this to future generations
2. It is terrible that innocent people have to go to prison, executions, etc.
3. let's leave race and ethnicity out of this....

Aside from those three points, I completely disagree with DCFriscoTX overall.  Unless he or she is willing to "volunteer" to be jailed as one of the "few innocent people" then these comments are completely out of line.  Afterall, who is this person to say what someone else should do or should be subjected to.  Please remember,

We are all accountable for our OWN actions, thoughts and beliefs:  we cannot control nor should we try to control those of other people.

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Most people reading this blog know the difference between a lineup and a show-up as conducted by law enforcement, but just in case you do not, here's my definition of each:

1. police lineup - a procedure where officers present (usually 6) people of similar size, race, hair color, eye color, etc. to a witness and ask the witness to identify the person they believe is the suspect.  This is sometimes done via a presentation of photographs, in which case the photos should all be used from the same source (booking photos of the same age, driver's license pictures, etc.)
2. police show-up - This procedure involves the suspects detaining a suspect and presenting him/her to the witness and asking, "That's the person who did [insert action]"....

The Usual Suspects movie poster.

For anyone who does not see the primary difference between these two methods of identification, consider this:

Show-up procedures are too suggestive, and at least one Texas legislator agrees and wants to change the law to ban the practice in Texas.

Why are they too suggestive?

Well, to begin, there is only one person that the witness is looking at and that person is usually sitting in the back of a patrol car, handcuffed, and surrounded by officers.  The question isn't typically open-ended but very suggestive--"that's him" or something of the sort is used by the officers.  And, anyone who is in this position does not look like they normally would... they are terrified, I'm assuming, and may even look physically shaken, not necessarily by the police but just the stress of the ordeal.

So, what can be done without "handcuffing the police" and thus preventing them from doing their jobs, which we all understand their purpose....

Well, Texas Senator Rodney Ellis has proposed that Texas adopt the sequential blind lineup, which was mentioned in the article I linked to above.  But, here's an excerpt from that article:

The proposed change, known as a sequential blind lineup, requires investigators to present lineup photos one-by-one rather than simultaneously. The investigator who presents the lineup would not be involved in the case and would not know who the true suspect was.

Police officials in Texas have opposed Mr. Ellis' efforts to make sequential blind procedure mandatory, although they have expressed a willingness to require that police departments have written policies regarding eyewitness identifications. Most departments do not currently have written policies.

I do not have any statistics supporting this move, but my experience in law enforcement and using photographic lineups allows me to understand exactly why people would complain about the process.  While I never suggested to a witness who the suspect was, I saw how the system was riddled with opportunities to suggest who the witness select:

1. leaving a paperclip on or near the one to be identified;
2. holding the document in such a way that one or more people are covered;
3. holding the document in a manner where you are "pointing" at the person you believe committed the crime....

My process was to explain to a witness what was going to happen, hand him or her the manilla folder, and ask, "Is the person you witnessed doing [insert conduct] shown in that folder?" Then, I would hand them the folder and allow them to look.  If they asked questions, I explained that I could not answer them and that they needed to be "certain" of their identification.

Much more information may be obtained about the sequential blind lineup procedure at the Innocence Project website and no, it is not simply a site of "liberals" spouting off about how the current system is broken.  It appears to fairly weigh all the possibilities and pros / cons of the system and those currently in practice.

So for now, Texas continues to take is "maverick" approach to law enforcement and utilize the photographic line-up procedure.  But, here's to hoping that Senator Ellis is successful in his charge to change the system....

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Law enforcement, when done correctly, is critical, but we must all understand and use our rights that are provided by the Constitution.  Bad and over-zealous law enforcement needs to be eliminated as much as crime itself--the ends do not justify the means.

Here is my first attempt to inform people of their rights and let them know what they should and should not do when they encounter police officers.  As a former central Texas cop, I am particularly partial to this subject and it always amazed me how people would interact with me and other officers on a scene.

Try to remain calm and control your words, attitude, and body language/actions.  Do not argue with the cop, even if you truly believe you are justified and the officer is wrong.  I understand this is difficult and that you may be trembling with nervousness, but it is critical for you to gather your emotions here and control yourself.

Remember:

1)      Everything you say or do will be used against you if possible;

2)      Never run from the officer;

3)      Never touch the officer;

4)      Never resist—you will only get hurt and face more charges;

5)      Do not complain or tell the officer s(he) is wrong;

6)      Remain silent – make no statements;

7)      Refuse all searches, do not give in to their pressure to allow a search.  Nothing the officer says should change your mind... refuse searches;

8)      Ask for a lawyer if you are arrested and if any questions are being asked of you;

9)      Try to take note of any witnesses, cameras, or “extra” officers;

10)  Do not interfere or obstruct an officer’s action—that is a crime and you will go to jail for it;

11)  If the officer says they have a warrant, ask to see it---if they refuse to show you, continue refusing to allow the search;

12)   Never bad-mouth a police officer (even though it can be so hard not to—that’s your lawyer’s job);

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In a federal murder trial that is nearing completion in Tennessee, the combining of words from separate sentences has created a storm of controversy and may lead to a mistrial for the Defendant.  Any attorney reading this blog will understand that a mistrial does not mean the Defendant walks free of the charge, but for any possible non-lawyer reading this, a mistrial merely means the process would be repeated with a new jury at a later time.

So what were the words that were used to create this controversy? The inflammatory statement made by the prosecutor, Steve Neff, was "racist rednecks".  Mr. Neff attributed this comment to the jury and credited the accused, Rejon Taylor for saying it.

But, what Mr. Taylor actually said was in a couple of different sentences in a telephone call that was recorded.  Mr. Taylor did refer to the jury as "little redneck-looking folks" and to the verdict as "racist". When these words are combined, I do not think it reaches the conclusion of "racist redneck". 

Now, why would the prosecution do this? Well, he wants to get the jury to sentence Mr. Taylor to death for his crime.  But, shouldn't the evidence support that, assuming that someone is to be put to death? Having to reach into a conversation and twist the evidence strikes me as desperate.  Part of reaching a death penalty verdict is to determine that the accused has no remorse for the crime, but using his descriptions of the verdict to do it seems out of the contrary and highly unprofessional.

I sincerely hope that this judge grants the mistrial and does not just use an "instruction" to the jury to "cure" the problem.  If in fact the jurors are "little redneck-looking folks" they probably will not see beyond the inflammatory nature of the comment... but, not knowing them, I will give them credit for getting there if this is where the court goes.

Bottom line, all of us need to pay closer attention to what we say and how we say it.  So many times people are hurt by the words that are used, even if it was not the intention of the speaking party.  I have learned this through encounters with many people but a couple of my dearest friends (you know who you are).  We are only responsible for our own actions and words, and cannot control (nor should we try to control) how those actions and words are perceived.

So, think before you speak and act.  And Mr. Neff, please be more professional.  You could have used the transcript exactly as it was stated to achieve the same result without stooping to this level of desperation.

For more details on this article, please read the article in the Chattanooga Times.

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It stupefies me that we are even having to discuss whether a man sentenced to death could receive a stay of execution and not an automatic reprieve when multiple witnesses against him have recanted their testimony... that is to say, taken the testimony back.

Americans fed a steady diet of Hollywood-concocted police procedurals and crime dramas have come to expect that police will always find, if not a smoking gun, at least a few damning pieces of forensic evidence. Real life is rarely so satisfying. In the Davis case, there was precious little physical evidence — no DNA, no fingerprints, not even the murder weapon, writes Cynthia Tucker for the Atlanta Constitution.

Also, USA Today ran an article where I found the following excerpt:

Prosecutors have labeled the statements of witnesses who recanted "suspect," and courts had previously refused requests for a new trial.

The stay will remain in effect while the court considers Davis' appeal. The court is set to discuss the case Monday. Davis wants the high court to order a judge to hear from the witnesses who recanted their testimony and others who say another man confessed to the crime.

Influential advocates, including former President Jimmy Carter and South Africa Archbishop Desmond Tutu, insist that there's enough doubt about his guilt to merit a new trial.

As Ms. Tucker points out, so many people across this country are convicted on so little information as "eyewitness identification" and circumstantial evidence.  As a general rule and criminal defense attorney, I would like to see more evidence but can understand the law on how these sorts of convictions are reached.  However, when you have 7 out of 9 people recant their testimony, it boggles my mind that anyone would go forward with the death penalty.  While the system legally has convicted Troy Davis, and purely under the system he could be executed, no room for error exists, as once he's gone, he's gone.

Why would the prosecutors label the recantations as "suspect"? While it may come at a time that forces them to revisit the case and we all know that prosecutors offices are innundated with cases, that still does not relieve them of their duty to see that justice is done, and executing an innocent man is not justice.

All that is being sought is a new trial--surely when there is this amount of "suspect" evidence, it warrants that to allow a jury to decide, or in this case, re-decide.  The facts have changed.  They are not what they once were.

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This happened some time ago, as to the significance of "blogging" but I re-read Scheffler's posting on the Texas District and County Attorney Associations website and was again intrigued at the personal investment that he put into this matter, which comes across in so many of his DWI videos.

I completely acknowledge that the place he posted this statement was legitmate and valid and to the extent Trooper Scheffler is seeking advice and opinions on the matter, he is well within his right to do so.  And, to the extent that he hopes to bring to light an issue that he deems a problem, I applaud him.  But, I strongly disagree with the manner in which he broached the subject because it seems as if it was written while he was angry (presumed from the tone of his article) at the judge who denied his blood search warrant.

Simply put, the tired answer but accurate method for getting blood search warrants for circumstances like this is to lobby the legislature to see about getting the law changed... where judges "shall" on probable cause issue....It's just like anything else, if you want the law changed, the Leg. is the best place for that to happen.

For now, that is not the law, and as such, I do not believe the judge was outside of the boundaries when the search warrant was denied, simply because the legislature did not intend to grant the power to take blood from a person suspected of a routine DWI, which I define as one in which there was not a death or serious bodily injury.

Setting aside my personal bias on this topic, another point that Scheffler raised in his entry jumps out at me:

... his refusal to cooperate with SFST's leave (sic) me with no choice but to place him under arrest for DWI. He refused to respond so I gave him a pair of pretty silver bracelets.

Having been in this very position when I was a deputy, we all have choices.  Whether you choose to arrest someone or to exercise discretion is up to the given officer. The fact that Scheffler refers to arresting someone as "[giving] him a pair of pretty silver bracelets" shows that he takes this matter personally and may not have been exercising the best professional judgment in the matter.  The point that I think is important is that Scheffler did his job... he may have prevented an accident. He may have kept the person arrested from hurting someone else.  Whatever happens to the case is of little importance for Scheffler, post arrest.  And no, I am not representing this client.

I would love to know what if anything came of the complaint, assuming one was filed.  Does anyone know... Scheffler?

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Sometimes, I wonder whether the title of my article is too stern for any given subject, because I will be the first to admit that I am trying to describe the subject of my blog in those few lines, but after reading Too Many of Us Hath Surrendered by Jim Donahue, I really found that I appreciated his perspective but questioned his attitude, hence the title of my entry.

In an attempt to be fair to Mr. Donahue, I want to say that I understand his argument that police work is cumbersome due to the amout of paperwork involved.  I can say this because I am a former deputy sheriff in central Texas who like other officers has chopped down my percentage share of the rainforests in writing reports, probable cause affidavits, and the countless other number of forms that go along with any given type of arrest. But, I must disagree with his assessment that the paperwork is out of line, regardless of the amount that is required.

One of two portions that stand out in Mr. Donahue's article was written as follows:

The real fact of life is that paper and procedure have created so enormous a burden on the street cop that it's led to non-enforcement. Drunks are not being taken to jail. Illegal aliens are routinely cut loose when they should be deported. Domestic Violence participants are counseled into withdrawing or changing their complaints.

My interpretation of this is vastly different from that of the author.  Instead of seeing this as a burden that is just overwhelming, I learned to see it as a challenge when I worked the street, and now as a defense attorney I am grateful for the role these documents play in the process.  What do I mean? Simply put:

• Cops who follow the model set out by the author are lazy.
• These cops do not want to do their job with any sort of accountability--paperwork that can be reviewed.
• Officers subscribing to this philosophy have lost the tenet of "to protect and serve" and dare I say, even fail to believe in the constitutional principle of "innocent until proven guilty".

Why else would an officer elect not to arrest a drunk or process a perceived illegal immigrant? Whether an officer is driving the street or sitting in a station completing  paperwork, that is part of the job description. And, technology has made it ever simpler to complete this paperwork. Having computers in the car and the ability to wirelessly transmit it where a given department's policy requires eliminates the argument that the officer is no longer available to serve the public.

And, without having the paperwork, what documentation is there for managing the case, by anyone... the officer a few months down the road who needs to review the report, the prosecuting attorney who needs all of the information as possible evidence, the victim services coordinator who needs to provide assistance to the victim, a defense attorney working to make sure that the Constitutional principles that all of us cherish are maintained, or the jury who has to decide whether there is sufficient proof to take someone's liberty away...oh ya, I forgot, let's just take anyone that has a differing opinion and toss them in a cell to be forgotten ... let's just ignore the Constitution... surely that is not the preferred method.

Now, in his article, Jeff Baker was referenced, and some Google research on my part led me to the one linked here.  Hoping that this is the same person, I must comment on another part that jumped out of Mr. Donahue's article:

The entire process has become perverted by practicing lawyers and lawyers who have moved on to become judges. To quote a recent article from fellow columnist, Jeff Baker, these people have "sodomized" our basic freedoms and our representative form of government through these egregious and perverted acts.

I would really like to find the exact article that is being referenced in this excerpt, as I think it must have been taken out of context or that the relatively inflammatory word "sodomized" was just tossed into a statement and spiced up with other descriptions of "egregious and perverted acts".

My reading of Mr. Donahue's statement leads me to conclude that he is not a fan of lawyers and that those of us who would dare question him or cause him and his fellow officers to do additional work and to document their actions are somehow attacking our "basic freedoms" and government.  Without dragging this out further, I would like to know how requiring the government to prove its case and to not simply arrest and incarcerate persons at will is sodomizing, or "pervert[ing]" the system.

I invite Mr. Donahue to reply to this post and would like to get to know more about his perspective, as I am a former officer, who resigned to pursue a career in criminal defense work.

In sum, neither me nor Mr. Donahue would be writing these blog entries today were it not for lawyers and other great thinkers like the Founding Fathers who created a document so great and so inclusive as to give us the right to Freedom of Speech and the many other cherished rights that are so often taken for granted.

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