You Don't Make Friends with Salad

Jeopardy! Tryout Update!

2008-07-02T13:11:00.006-05:00

So in between Jeopardy tryouts, my bachelor party in New Orleans, moving into our first house, additional wedding planning, a visit from the soon-to-be in-laws, a 3 day criminal defense lawyer's conference, etcetera, it's been a long few weeks.

Trying out for Jeopardy was a great time. I have wanted to get on the show for about 18 or 19 years now, though it's been about 5 years or so since I regularly watch the show. I had participated in the online contestant search earlier this year and heard back from them two months ago letting me know that they wanted to put me through the motions in person. Flew into Dallas, found the hotel, camped out at a Starbucks, drank way too much juice and iced tea, went back to the hotel, went to the restroom 4 times, and signed in for my appointment.

I was very surprised about the people at the tryout. Like me, they seemed normal enough. Or maybe that means I am so far down the geekhole that I can't tell the difference. There were only a few that met my stereotype for the typical contestant; one guy actual did declare that he lived in his grandmother's basement. Considering that I had expected to come in and be the most socially adept person in the room, I was a little crestfallen at this point.

We took another 50 question test, that I felt pretty good about. The scuttlebutt is that 35 or more correct (70% +) will qualify you to be on the show. I think I was somewhere between 38-40, and my studying did actually pay off to the tune of 2 questions. They next have you come up in groups of three and play a simulated mini-round. The Internet revelations about how the buzzer timing works were extremely accurate and helpful (even though I wasn't technically on the Hollywood set). There is a delay between when the question ends and the light comes on and you can ring in slightly before the light comes on and not be locked out. Still, I am not a particularly fast buzzer operator, but I'd say I got about 6 out of 15, which makes me slightly above average. The capper is the interview, which I thought went OK. I had hoped they would ask me to do my Celebrity Jeopardy Sean Connery impression, but I'm pretty sure there's one douche bag per audition who thinks they do it spot on. I was that douche bag.

After all of that, there was nothing more than the vague statement that we may be called in the next 18 months to fly to LA to be on the show. Based on my highly unsophisticated calculations (30 people per session x 3 sessions per city x 8 cities = 720 applicants), if a whole season is about 180 regular episodes and there are at least 2 new contestants per episode, I figure I have about a 1 in 2 chance of getting a call. Let you know what happens.....

MIA No More (At least beginning next week....)

2008-05-21T12:51:00.003-05:00

I apologize to my reader (Hi Mom!) for the sounds of silence the last couple of weeks. We bought our first house last week, and I am preparing for my audition on "Jeopardy!" tomorrow and my New Orleans bachelor party this weekend. I think the audition deserves a more in-depth treatment here, but I am reviewing some weak areas (Books of the Bible, Opera, English literature, Current World Leaders) and that is taking up most of my time.

To tide you over, here's some interesting stuff I have discovered in the past few days:

- Richard Wagner, whose work was heralded by Hitler, was quite the anti-Semite. In addition to being adopted golden boy of the Nazis, he published his own anti-Jewish screeds in the middle to late 1800s. Jackass.

- Deuteronomy 25:11-12 prohibits women for coming to the aid of their husbands by attacking the other man in the crotch ("[11] When men strive together one with another, and the wife of the one draweth near for to deliver her husband out of the hand of him that smiteth him, and putteth forth her hand, and taketh him by the secrets: [12] Then thou shalt cut off her hand, thine eye shall not pity her."). Something to keep in mind, ladies.

- Joshua, after destroying the walls of Jericho, took the Israelites born during the Exodus to a place in the desert and had them all circumcised. This is place is known by the name Gibeath Haaraloth, which means "hill of foreskins".

UPDATE: Smart Start's PR Team at Work

2008-04-30T14:09:00.005-05:00

This week I received my first lesson in the "someone's actually reading this thing" department. I posted a few weeks back about how one of my clients had been having some problems with his Ignition Interlock Device mandated as a condition of probation. I had no luck getting anyone at the company locally or at the corporate number given to me by the local offices.

Surprise, surprise, Debra Coffey left a comment and wants me to call her (and the number is one of Smart Start's exchange, so it seems legit). I will post if anything comes of this conversation.

The squeaky wheel may just get the grease, folks.

Diorama Drama

2008-04-24T14:05:00.007-05:00

Most of the clients that I have seen charged with criminal mischief fall into three categories: jilted lovers, road ragers, and graffitists. As it turns out, it may be time to reconsider my attempts to categorize people charged with criminal mischief.

The director of the Texas Military Forces Museum here at Camp Mabry is alleged to have destroyed a diorama built by high school students in Arizona. A previous museum director commissioned the diorama from the school, but Jeff Hunt (who was dismissed from a previous job at the Nimitz Museum in Fredricksburg) decided that because the work was historically inaccurate. Former employees claim that Hunt lost his temper with the diorama and tore it down over a weekend during Fall 2007. But wait! If there was an explanation for any inaccuracies, it might be because the book that the students based the diorama on was flawed. The author of the book? Jeff Hunt.

Now the high schoolers want criminal charges filed against Hunt, alleging that the diorama was valued at over $23,000 (and took over 6,000 hours to build!). They have enlisted some heavy hitters, getting both Sen. John McCain and AZ Gov. Janet Napolitano to petition Rick Perry to file some charges. Presumably, the State would try to charge Mr. Hunt with criminal mischief (Texas Penal Code Sect. 28.03). That section reads:

(a) A person commits an offense if, without the effective consent of the owner:
(1) he intentionally or knowingly damages or destroys the tangible property of the owner;
(2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or
...
(b) Except as provided by Subsections (f) and (h), an offense under this section is:
...
(5) a felony of the third degree if the amount of the pecuniary loss is $20,000 or more but less than $100,000;

Ouch. 10 years in jail because he didn't like the diorama based on his own flawed book. Sounds like that bent Wookie could cost you, Jeff.

FLDS and the Fourth Amendment

2008-04-22T15:09:00.005-05:00

Scott at Grits for Breakfast called criminal blawggers out for not taking a stronger stand either way on the recent events in Eldorado, Texas.

The reason I haven't posted on this, Scott, is that I'm really torn. The culture of the Mormon polygamists is so foreign to me. I've seen the 20/20 episodes, the Dateline exposes, all detailing the harrowing tales of how women are trapped at any early age, how they are physically assaulted, sexually abused, emotionally trapped, and generally imprisoned in these communities.

But, as I have slowly realized, the only response to this laundry list of terrible things that I may "know" or think about FLDS communities that really matters is: so what? The Fourth Amendment says that that the suspicion must be particularized to individuals in criminal cases, and in this case the State of Texas has nothing. The subject of the alleged call for distress has yet to be located, and there's very strong evidence that the call came from a woman in Colorado, not a 16 year old girl. Further, the man who was supposed to have sexually assaulted this girl was not even in Texas at the time she said he was, a fact that was imminently verifiable by Texas authorities (he has been in Colorado, dutifully reporting to his probation officer). Moreover, the detention of 400+ children and their forced separation from their mothers and fathers has uncovered no evidence of any sexual abuse.

It doesn't matter legally if the searches and seizures did uncover anything, because the validity of the warrant to search YFZ Ranch is based on what's referred to by lawyers as "the four corners of the warrant". Basically, it doesn't matter what the search uncovers to corroborate the suspicions of law enforcement or whatever other information was available to law enforcement; all that matters is was there probable cause to believe a crime had been or was being committed based on the information contained in information used to obtain the warrant from the magistrate.

As much as I might abhor the polygamist lifestyle, as much as I might have an unsubstantiated hunch that something's wrong there or that a crime has been committed, it don't mean jack. The true measure of a democracy is how the government treats politically and socially unpopular groups. Texas, we have failed in this regard.

UPDATE: DWI still not a "violent crime"

2008-04-16T11:00:00.002-05:00

If you'll recall, I posted a few weeks back about MADD and Smart Start mischaracterizing DWI as a violent crime, a position which goes against the language used by every law enforcement agency and government organization in the USA. Well, the US Supreme Court released a decision today in which it held that a felony DWI did not constitute a violent crime (under the Armed Career Criminal Act). Just in case there was any question.

Texas Harrassment Law Struck Down

2008-04-08T16:36:00.005-05:00

It doesn't happen very often in Texas, but the 2nd Court of Appeals in Fort Worth struck down Texas Penal Code Section 42.07 governing Harassment by electronic communication in deciding Karenev v. State. The defendant in that case had been convicted for sending several emails to his soon-to-be-ex-wife which the jury felt were in violation of Section 42.07(a)(7). 42.07 reads:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: ...
(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

The Fort Worth Court held that the statute was impermissible vague and offended the First Amendment, striking it down. This is because, as the Court of Criminal Appeals has told us, "vague laws offend the Federal Constitution by allowing arbitrary and discriminatory enforcement, by failing to provide fair warning, and by inhibiting the exercise of First Amendment freedoms." In other words, it's hard for a person to know what kind of conduct that a vague statute would prohibit (and ti gives law enforcement an unclear idea of what behavior they need to curtail), and therefore such a statute can not be enforced.

Much like a prior stalking law stuck down in 2006, the statute used terms from which it was difficult to discern what constituted prohibited conduct. The law did a poor job of defining what exactly "annoy, alarm, abuse, torment, embarrass, or offend" meant and who decided whether or not such conduct. Even if the statute more clearly defined the context of those terms and applied a reasonable person standard, 42.07 "employs, in the disjunctive, a series of vague terms that are themselves susceptible to uncertainties of meaning."

It's this kind of sloppy drafting that leads to laws being overturned. I would hope that someone in the legislature, especially given that many of them hold law degrees, could have seen this one coming. Instead, the legislature went ahead and passed a law that used almost the exact same language as the old Stalking law!!!! Let's stop whining so much about "activist judges" and worry a little bit more about "lazy legislators", OK?

(As a side note, this kind of stereotyping that hurts us all; not everyone from Bulgaria is an email harasser or a Quidditch-playing wizard-in-training.)

Why I practice criminal law

2008-04-08T11:04:00.005-05:00

From Orin at The Volokh Conspiracy: what at first glance is a humorous actual patent application for a "Method and instrument for proposing marriage to an individual." Sadly, this patent application is written by an actual patent attorney in the actual form, and thus goes on and on for about 5,500 words.

Allow me to suggest an amendment: [0044a] In the more likely event that Ellie comes to her senses and realizes she is signing up for a lifetime of this sort of tedium, she should instruct the limo driver to take her to the international terminal and freedom.

Lehmberg v. Montford, or Dirty Games in Local Politics

2008-04-06T00:22:00.016-05:00

As if shadowing every other race this year, the runoff for the Democratic nominee for Travis County District Attorney (and actual DA) has gotten considerably hotter over the last week. The race features veteran Assistant DA Rosemary Lehmberg and Mindy Montford, also a ADA in Travis County. Recently, an anonymous blogger posted that a fairly unpopular fellow around these parts, former TC Sheriff and Craddick-enabler, Terry Keel, was supporting Montford (along with Karl Rove, too.). Lehmberg's campaign seized upon the post and ran with it, hammering Montford for being a wolf in sheep's clothing. Well, as it turns out, the anonymous blogger turned out to be Kelly Fero, also a paid political consultant for Ms. Lehmberg. Oops. While this screw up could cost Lehmberg the election, Terry Keel went a step further and filed a criminal complaint against Fero last week, alleging that Fero had violated Texas election laws, as well as threatening a libel suit. Is there something to either of these claims?

Texas Election Code, Section 255.004 (a) & (b)
Section 255.004, True Source of Communication, reads:

(a) A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person enters into a contract or other agreement to print, publish, or broadcast political advertising that purports to emanate from a source other than its true source.
(b) A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person knowingly represents in a campaign communication that the communication emanates from a source other than its true source.

The implication made by Keel and his lawyer is that there was some sort of deal between Fero and Lehmberg to publish this information anonymously on Austin Political Report. I would think that the biggest hurdle for Keel's complaint to work under subsection (a) is that he's got to show that Fero's claim on a website constituted "political advertising". But if you look at the definition of political advertising under 251.001, you'll find that the Texas legislature defines it as

a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that:
(A) in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television; or
(B) appears:
(i) in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication; or
(ii) on an Internet website.

Wow. That means essentially that any statement subject to an agreement between a candidate and another that supports or opposes a candidate for political office is a political ad if it appears anywhere on the Internet. Wrote a blog entry? Political ad. Commented on a message board? Political ad. Left a comment to a news story on a website? Political ad. Needless to say, this seems like an exceedingly broad definition of "political ad" which offers greater First Amendment protection to a statement made on the radio or on TV than to anything that has anything to do with the Internet. You would even have a decent argument that an email (unless the State could show that it is a "similar form of written communication") has more protection than some pissant comment on some pissant website. I could go on TV and make a statement while misrepresenting my identity (or call into a radio station or write a letter to the editor that is subsequently published) and be in the clear, but all of a sudden I post on a lightly read blog and I'm a criminal? There might be some traction for a overly narrow attack via the First Amendment here. That is, the statute unfairly penalizes those who engage in this sort of conduct via the Internet and doesn't touch people who do the same thing (or the equivalent act) via TV, radio, or a newspaper.

Suppose, however, that the statute did survive First Amendment scrutiny, then Keel will struggle to prove that the "ad" "purports to emanate from a source other than its true source". Austin Political Report is posted anonymously and makes no representations about who is posting. If you don't state your name, then your not representing anything about your identity other than you're not willing to reveal it to the reader. If Fero had said represented his blog as being written by Keel himself or Rick Perry or Walter Cronkite, then there might be some traction under 255.004. He may have played a very misleading trick on his readers, but he didn't say he was someone he wasn't.

Lehmberg would also be immune from prosecution under subsection (a). She certainly can deny the requisite intent by virtue of her ignorance of the actual source. But assuming you (or a jury) disbelieved her, the campaign attributed the remark to Austin Political Report, not someone else. Technically then, she can argue that she may have failed to completely disclose her relationship to Fero/APR, but did not misrepresent the source of the report.

TEC 255.004, subsection (b) is a different story. A campaign communication is "a written or oral communication relating to a campaign for nomination or election to public office or office of a political party or to a campaign on a measure." This much broader net catches both Fero's publication of the statement and Lehmberg's use of it for her campaign. But it also catches any statement, spoken, written, or posted on the Internet, that has anything to do with any election. I would hope that a court could be persuaded that this is an overbroad restriction on political speech, but I'm not sure the State couldn't convince the court otherwise.

But the conduct required to constitute a violation under subsection (b) is pretty vague (at least in consideration of sources posted anonymously). Basically, any statement that says that a communication is from a source different from the one to whom it is attributed. As near as I can tell, Lehmberg cited APR for the Keel news. This was the source of the news. It just so happens that APR is also owned, operated, and written by Fero, a political consultant working for Lehmberg. "True" is not defined by the statute, so it's not clear if it would be satisfied by disclosure of one's "web handle" or a more "whole truth" or absolute/total disclosure. (Sorry if it seems like I'm parsing words here, but that's what we have to do, especially when it's not entirely clear what the legislature intended.) I guess given this nation's strong connection to anonymously (think Publius and the Federalist Papers) and the protections that courts have extended in similar circumstances (Paris-site's legal victory) I'd have to come down on the side of at least allowing this to satisfy the definition of true.

Texas Election Code, Section 255.005

A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person misrepresents the person's identity or, if acting or purporting to act as an agent, misrepresents the identity of the agent's principal, in political advertising or a campaign communication.

Misrepresentation is defined by my very dusty copy of the 3rd Edition of Black's Law as "[a]n untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead." Black's isn't the end-all be-all of what the Election Code takes as the definition of misrepresentation, but the term is not defined in that code, so it's at least a good starting point. Let's take each of these definitions in turn with regard to Fero:

- Untrue statement of fact: I'm not sure, as I suggested above, that writing anonymously is necessarily "untrue". If you are clearly writing without identifying yourself, you can at least argue that you are being truthful about your anonymity.
- An incorrect or false representation: The same logic applies here. I haven't said I'm John Smith, I just haven't said who I am.
- Apprehension of condition other and different from that which exists: This definition casts a wider net and arguably picks up the whole truth notion. Specifically, the fact that Fero is not disclosing the fact that he is a paid consultant for Montford's opponent.
- A statement made to deceive or mislead: Again, a wider net means more potential trouble for Fero. He would have no defense here that he didn't know the campaign was going to use this one; the loose definition of "campaign communication" picks up any statement made relating to a campaign.

There is a difference between not naming oneself and giving oneself a false name. But this charge would just come down to how "misrepresents" is defined under the Election Code. And a pre-existing relationship between Fero and Lehmberg makes this even more difficult to sort through.

Texas Civil Practice and Remedies Code, Section 73.001

A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

Mr. Keel also hinted that he was considered a civil action for libel against Fero. Basically, a person has a cause of action if another writes a defamatory statement about the person. I think it would be pretty hard for Keel to show that his reputation in Travis County/Austin is somehow impeached or otherwise damaged by Fero's statement; Keel did a good enough job of that as a legislator and a vital cog in Tom Craddick's attempts to retain the Texas Speaker's position. (He's widely vilified here in Travis County, an opinion which ha s been expressed many times, just in case he doesn't like my assessment either.)

I am not a civil attorney, but I know enough about the law to confidently tell you that this claim is a bunch of horseshit. I'd rely on the lawyer retained by Mr. Fero, Buck Wood, who said it best: "What's in that blog is true ... If they will just file their libel suit, let's get after it. They are afraid of a libel suit." Ah yes, truth is an absolute defense to libel, so if Fero could show that Keel made such a statement, then it's game over. We haven't heard anything more about this supposed lawsuit, and like the whole incident, this is more about trying to make Lehmberg look as bad as possible than it is about Keel recovering any damages or seeking redress for any crimes allegedly committed against him.

Ultimately, this may prove to be a distinction without a difference. Lehmberg and Fero could very well prevail in all of the above legal arguments, but this arrangement still stinks. All the backpedaling and post hoc remedies in the world can't make the stench go away. I guess we'll see what effect this had Tuesday night....

UPDATE: As I was writing this long-winded post, I stumbled on TexasKaos' take on the same subject. I can't say I disagree much. The Legislature has gone after critics on the Web and created a much more privileged spot for people on traditional mass media (maybe because they hate some of the things written about them online???).

Lawyers and Web Ads

2008-04-04T15:40:00.001-05:00

Jamie at Austin Criminal Defense Lawyer is decrying the online ad spending of the local criminal defense bar. According to his estimates, in the Austin market alone, criminal defense attorneys are spending about $1 million per year on Google's cost-per-click AdWords program. I'm not sure that the number is quite that high, but if it's an overestimate, it's not by much.

For the lawyers who are getting in and bidding upwards of $50 for the most popular keywords and phrases, I have to think that Jamie's right. This cost is being passed on to the clients. But lots of costs get passed on to clients: rent/mortgage payments, staff salaries, etc. In a market like Austin where the fight for clients is so competitive, you have to have some way to drive potential clients to call, email, or walk in the door. Referrals are great, especially from former clients, but it takes a long while for a practitioner (however great) to develop a critical mass of new clients based solely on reputation.

So we advertise. We run ads on TV, radio, newspapers. We send out direct mail flyers and post ads in restrooms. We print up key chains, lighters, matchbooks, pens, and all manner of things just to get our names out there. We might even buy terribly misleading 1-800 numbers. All these costs are passed on to our clients. I think people understand the need to advertise. But if clients are so upset about having these costs passed on to them by the big ad buyers, then they need to do a better job of researching their attorneys better and speaking to more than one or two lawyers about their cases. (I encourage every one of our potential clients to seek at least a second (and preferably a third) opinion about their case.)

Buying keyword ads on search engines is one of the smarter ways to target your clients. You can go for huge market share and try to get as many customers as possible, but you can also be smart about your placements, carefully track your costs, and (this is the best part about Internet ads) track what ads and keywords do well and generate actual clients. You struggle to do that with TV or Yellow Pages, but I can say confidently that our website redesign and ad campaign has paid for itself 3 times over in the few months since we relaunched. We haven't had to raise our prices to cover that. Ultimately, we want to be high in organic search results, too, but that takes time and knowledge to do it yourself or a huge commitment to an SEO company. More importantly, eye tracking studies have confirmed that the first place that most users tend to look (and click) are the top ad placements and the first three organic results. You should do both, at least where it makes financial sense.

Ultimately, it's up to our clients to say how much is too much. There are several lawyers here in town that charge several times more than we do, largely because they're collecting their trial fee in every case. If 98-99% of all criminal cases in Austin are settled without a trial (that's just a number I hear thrown around a lot), then why are potential clients paying for something they don't get (or don't want or shouldn't have, etc.)? If you're looking for a lawyer, these are the kind of questions you have to ask. Don't be pulled in by a sales pitch. Do your homework.

Sidestepping Proof

2008-04-03T16:17:00.005-05:00

Lawrence Taylor at DUI Blog touched on an interesting way that state legislators have tried to get around proving that a person was actually driving while intoxicated. Most states require that the prosecutors engage in a process called retrograde extrapolation to prove that a breath, blood, or urine test taken some time after arrest (and obviously, after driving) has the requisite bearing on BAC while the person was driving. In California, Vehicle Code Section 23152(b) makes it a:

rebutable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

This forces the defendant to prove that a sample taken 3 hours before he was observed driving is inaccurate, essentially flip-flopping the presumption of innocence. How? Well, the body could still be absorbing alcohol into the blood from the stomach and the person who blows a 0.09 at 12am could easily have been a 0.05 when pulled over at 9pm.

Under Mata v. State (46 S.W.3d 902 (Tex. Crim. App. 2001)), the State must prove that the defendant was actually intoxicated while driving, not while submitting a breath test. But it's not as if MADD isn't trying to destroy the presumption of innocence through legislation. Look for this bill to get re-submitted in the 2009 Legislative Session by another legislator who doesn't grasp one of the most vital cornerstones of our criminal justice system.

Attempting to Navigate MADD's DWI Maze

2008-04-02T12:53:00.009-05:00

The San Antonio Express-News reports today about a new program in Bexar County designed to reduce the DWI caseload there. Basically, people accused of DWI will have those cases dismissed in exchange for pleading guilty to "Obstructing a Passageway-Intoxication" and being put on a more heavily supervised form of probation. DA Susan Reed noted that the two-year backlog in DWI cases has led her office to create the program. Maybe that's because the Bexar County DA's office doesn't offer reductions in borderline or bad cases for the State. So in essence, this is a problem that her own policies have created, but she wants to cast this as something caused by defense attorneys or defendants (How dare they insist on a trial!!!!).

Beyond her misunderstanding about why there is a 2 year wait for jury trials, there are several problems with her program:

- First, there is no crime of "Obstructing a Passageway - Intoxication". Section 42.03 of the Texas Penal Code outlines the offense which is basically blocking a road. The charge is popularly used by County and District Attorneys as a reduction from a DWI (along with Reckless Driving) on those plea bargains where the State knows it would have a difficult time proving a DWI. In their mind, it's better to put folks on probation and be able to monitor them than run the risk they walk out the door with an acquittal. For defendants, it's sometimes a good deal because you avoid all of the direct and collateral consequences of a DWI conviction (The $3000 DPS surcharge, the stigma of a DWI conviction, a possible criminal license suspension, higher insurance rates, and maybe the defense attorney's jury trial fee). However, there is nothing in the statute or the Code of Criminal Procedure that allows for a finding that the person was also intoxicated while doing so. This would be akin to saying "Failure to ID - Leprechaun" or "Providing Alcohol to a Minor - Unicorn". It's fantasy language that has no legal bearing.

- Second, I don't this policy will operate as smoothly as DA Reed seems to think it will. Section 49.09 of the Penal Code specifies that a DWI charge can be enhanced "if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated." Now I don't have the legislative history for this, but the descriptive language of 49.09 is likely there so that out-of-state convictions for crimes that aren't called Driving While Intoxicated (e.g. Driving Under the Influence, Operating Under the Influence, Operating While Intoxicated) can nevertheless be used to enhance that new charge to a Class A Misdemeanor. (In Texas, this enhancement is no small thing; a DWI-2nd carries many higher penalties and includes mandatory jail time even if the defendant is given probation.) But it does not mean that an offense like "Obstructing a Passageway - Intoxication" can be used to enhance a subsequent DWI arrest to a DWI-2nd. Pay attention to 49.04(c), which limits those offense to actual DWI convictions.

So what, right? Well, what this means is that people who have Obstructing a Passageway convictions (even if with some language indicating an intoxication "finding") cannot be enhanced on a second DWI arrest; they can only be charged with a DWI 1st. This is what will ultimately kill any support of MADD (the spokesperson quoted in the article seemed to think this was still a possibility), and hence the long term viability of this program.

- Third, the program requires an IID. I have less of a problem with IID for someone who's pleaded guilty, but I still say it's a very unreliable machine and any failures fall at the feet of the probationer, so I'm not entirely thrilled about it being a mandatory condition.

- Fourth, the scheme proposed by Bexar County is time sensitive; you must apply for the program within 30 days of the date of your arrest. In Austin, the video of your arrest isn't available until about 60-75 days after you have been arrested. Assuming San Antonio takes at least 31 days, this program has the effect of pressuring the accused to forfeit their right a trial (and a lot of the concomitant rights that go along with that) on a ticking time bomb. What if the video would have shown that the officer was misleading or lying about bad driving? What if the behavior and alleged "clues" are equally misrepresented or lied about in the officer's probable cause affidavit? This is the same dilemma that the accused who languish in jail (get out today without knowing all the facts or stay in jail and fight the case for a few more weeks) and it really troubles me to think that this DA's office is just refusing to engage in any reasonable sort of good faith negotiations after 30 days.

Ubiquitous Snitches

2008-04-01T17:25:00.001-05:00

Grits for Breakfast, who has written extensively on the problems inherent in snitch-based evidence, picked up this story from the Austin American Statesman regarding a high profile cocaine arrest.

Scott Mitte, who among other things, sat on the board of his parents' charitable trust, had apparently been spotted by a civilian at a strip club parking lot with coke in his car, and the officer saw white powder [of course he had blow below his nostrils, check out the 'stache!]. The officer approached him and a subsequent searches revealed "plastic bags of cocaine in his pocket, wedged in a chair at his table in the club, in his vehicle's glove compartment, and on the car's center console." So the good folks did what they (and APD) almost always do, they offered Mitte a deal: get us some other arrests and we'll help you on your case. (Mitte screwed the pooch, though, showing up at a meeting to set up another controlled buy with his own one ounce stash of yayo. Deal taken off the table and homeboy has two cases now.)

In my experience, the suspect has a menu of options: x number of arrests equals a probation offer (negotiated supposedly by the law enforcement agency), y equals a deferred adjudication, and z (somewhere closer to 10) equals a dismissal. Hell, it's not as if they're being secretive about this arrangement ("It's offered to everybody.")

So someone arrested for possession is told in no uncertain terms that by getting others arrested, he can secure his own freedom. Is there any more unreliable system than that? Is he now going to be truthful about what he alone witnessed? I haven't yet had on of these go to trial, but I would be interested to know if the DAs regularly disclose this as part of their Brady obligations. I think it would be great for the jury to hear that they consistently rely on this kind of information to prove their drug cases, information obtained under the shadow of a threatened felony prosecution and for no other reason. Blech.

UPDATE: Hat tip to an anonymous commenter, who pointed us (is that the royal we?) to a story in Chronicle of Philanthropy (subscription only) that reported the Mitte Foundation had to withdraw some scholarships it committed after it ran out of money earlier this year. As it turns out, this is not the first time Scott or his dad have been accused of wrongdoing (Scott for being sued 4 times for sexually harassing Mitte Foundation employees, and dad, Roy, for misusing company funds). Why can't I have clients like this?

UPDATE: More details about misdeeds at the Mitte Foundation were reported by the Boston Globe in 2003 (Check out Page 6 of the article for the specifics). According to the article:

Since 1999, the foundation has purchased Tony Bennett concert tickets worth $4,003, a $4,037 custom tuxedo, and six doors totaling $6,090 that were delivered to Mitte's home, according to an audit of foundation expenses. During Mitte's tenure, the foundation's spending on travel and meetings rocketed from about $50 a year in the late 1990s to $183,000 in 2001, while his compensation also leapt from $31,000 in 1999 to $220,000 in 2001.

And it paid $368,000 in legal fees last year, up from $6,689 the year before, in part to cover a legal battle between the foundation and Roy Mitte's company. Also last year, the foundation footed the bill for an out-of-court settlement with a woman who sued Mitte for alleged sexual harrassment. The foundation disclosed a $139,000 "legal settlement'' on its 2002 tax return.

The foundation's lawyer, Jeffrey T. Knebel, declined to discuss the settlement or answer questions about other foundation spending. Mitte resigned as executive director in August, 2002, when the harassment charge became public, but remains on the foundation's board of directors and serves as its senior vice president. He did not return calls from the Globe.

In a statement, the foundation said it believed its expenses were "reasonable, appropriate, and have been greatly justified."

Self-Affirming Sensastionalism and DWI Prevention

2008-03-24T16:31:00.010-05:00

Texas law allows for a probation requirement whereby DWI offenders must have an Ignition Interlock Device installed on their cars. Travis County judges will also require it as a condition of pretrial release in certain cases (i.e. repeat offenders, egregious offenses, or especially youthful suspects). Several companies sell products which affix to the person's ignition and prevent them from driving. Amazingly, one such provider, Smart Start, has marketed their products to defense attorneys in what I can only guess is an attempt to get us to suggest their product over others.

Two things happened today which give me pause (above and beyond recommending a company that has the potential to put my clients back in the pokey):

1) We have a client who is alleged to have violated the terms of his probation by submitting breath samples with alcohol in them while trying to operate his vehicle. He noted that he received a different message from the machine than what is normally received for a failure. Trying to clear this up, I gave Smart Start a call and expected them to at least generally discuss the machine and it's operation, since I am, at least potentially, in a position to send them business. The local employee I spoke with said that their position was that they would not share any information about the product with the client or the client's lawyer. In short, he concluded, "Sir, I'm not telling you anything." Fair enough, but tell your Marketing folks to stop blowing smoke up my ass, OK? Besides, your stonewalling notwithstanding, a subpoena should produce the information we're looking for.

2) While I searched for technical and operational information about their products online, I stumbled across something that I found a little disturbing and a lot misleading on their homepage. At the bottom of the page, the have some text which claims "DWI is the nations [sic] most frequently committed violent crime" (you may have to Reload a few times to see the same banner). It's certainly a noble goal to prevent drunk drivers from re-offending, and I can honestly say that the alternative to an ignition interlock device is ridiculously cost-prohibitive for most people convicted of a DWI, so I do give IID companies credit for helping to allow my clients to drive so that they can keep their jobs.

But calling DWI a violent crime is ridiculous (those are all law enforcement sources, BTW). DWI is completely outside the common understanding of what a violent crime is. A "violent crime" is one where one person threatens or does violence to another (think murder, rape, aggravated assault, child abuse, robbery, assault, etc.) Yes, some people who are DWI kill or injure innocent victims. But not everyone who commits a DWI (or who is arrested for DWI) fits that description. This is the same as saying "Speeding is a violent crime", "Weaving in a lane of traffic is a violent crime", or, as happened to a client who came in today, "Stopping to aid another motorist who got into an unrelated accident is a violent crime." It's dishonest, even if it's well-intentioned.

More proof that words do (should?) matter.

UPDATE: The US Supreme Court agrees with me. In the context of defining "crimes of violence" under the Immigration Code, a DWI does not belong. So says Leocal v. Ashcroft. Take that Smart Start webmaster!!!!

Travis County's Finest

2008-03-21T08:28:00.004-05:00

Not your best moment, Adam. With all apologies to Judge Breland, though, it is sort of humorous to see "simulated masturbatory gesture" in a official court document.

Perhaps it's time to reconsider using "Bulletproof" as your nickname? Besides, you can't give yourself a nickname, Coco.

(FYI, "contumacious" means obstinate; stubbornly disobedient; persistently, willfully, or overtly defiant of authority.)

Loyalty Defined

2008-03-20T10:25:00.005-05:00

It's nice to see that the Sixers crowd last night was so classy in welcoming The Answer back to South Philly. The Illadelph is not known for this kind of behavior and it was great to see him get so emotional too.

If only the rest of the city could behave this way. I still believe Joey Vento's signs at the cheesesteakery-that-shall-be-unnamed are awful and likely intimidate non-whites, but the city attorneys just didn't do a good enough job of convincing the Commission on Human Relations that "Please Speak English" signs resulted in discriminatory refusals of service. Now, if someone was to put together an elaborate hidden camera sting (I'm looking at you Chris Hanson....), then they could likely connect the dots. The city won't push too hard, though. They're not out to commit political suicide.

(Of course, the ultimate irony is that Joey Vento's ancestors likely suffered terrible discrimination when they arrived in Philadelphia from Italy, a fact that is entirely lost on him.)

SXSW: Days 2-4

2008-03-19T09:58:00.004-05:00

So, after having a great time on the first day of SXSW, I completely lost steam going into the weekend. I think, at age 30, the simple act of going out until 1am for that many nights in a row has the tendency to wear you down.

In any event, on Thursday the Missus and I made the trek into the Mouth of the Cat. We parked and walked 13 blocks to see The Presidents of the United States of America. These guys were part of the mid-90's influx of moderately talented bands who rocked hard and were marketed harder. I came more for the cache of seeing how far they had fallen from Top 40 fame.

Wheatus was performing when we got there. I can't say much about them other than their name is oddly similar to weenis (where have you gone Wicked Sceptre?). We met an old friend of ours there, so maybe it was just because we were too busy catching up to pay them very much attention. Oh well, next time I'm in Long Island....

PotUSA really caught me off-guard. I expected this to be the typical "we're still playing the string out on our top 40 hits" moment of SXSW. However, despite being about 2 times as old as the crowd, they brought it, enough to make me ignore the old friend. They had great energy and their new material was excellent. Secondly, they played both their radio songs ("Peaches" & "Lump"), and both were well-received (which makes me incredibly two-faced since I will with one breath accuse them of being two hit wonders and in the next, express joy over the fact that they played said hits). I might actually take a flyer and purchase a CD.

Friday was super-packed on W. 6th. by the time I got down there, hoping to see North Mississippi All-Stars or The English Beat, it was full up. Oh well.

My vote for the coolest show that was booked as an official participant that I did not get to see was Wing. For those of you not familiar with her work, here's a quick summary: Wing is a Hong Kong native and current resident of New Zealand who has released 14 albums of her covers of popular music. She does not appear at all familiar with any of the covers she performs, all songs are sung about 3 or 4 octaves higher than originally composed (except apparently for her Alto album), and most are off-key (I suggest you listen to some samples here). She also appeared in a South Park episode. Unfortunately, the Missus and her dad were not as enthusiastic about the performance as I was, and I guess I need to work on my persuasion skills if I have any shot at making this law thing work.

SXSW Music: Day 1

2008-03-13T10:27:00.007-05:00

I have something embarrassing to confess. Despite growing up in Austin, being in Austin during Spring Break after that on numerous occasions, and living here for the past two years, I have never been to a single official musical event. There. I said it. Flashback to Monday. A guy who we met at our local had made a ridiculous bet (whether Dan Rather would win his lawsuit) and I think realized his judgment had been affected by the sauce and was looking to settle up. Boom! Two wristbands! I am a South By virgin no more.....

Last night, I spent about an hour on the official website narrowing down what bands sounded like they would be fun. I found a lot of interesting sounds there, but the venue I was settling on had to overcome my fear of dealing with East Sixth Street. Finally, I found music I liked at a venue I could park at: Warp Magazine's Show at Opal Devine's Freehouse. The Missus was not enthusiastic about going out (probably because she didn't have the last 1 1/2 hours invested in finding a place to go to). I saw three performances, and my neophyte reviews follow:

Kanko: These guys are actually from Austin, and their music is a little hard to describe. Their were some moments of mariachi, some surf rock sounds, a rapper's delivery, and a little bit of punk thrown in. The mostly Mexican crowd didn't seem to get it at first, but by the end they had people moving.

Los Dynamite: Mexico City band with English lyrics and a huge following who came up to support them from DF. Fucking brilliant. Strokes-y, Hives-y, Energy. Made a 32 year old feel young again. For 35-40 minutes, at least.

Sussie 4: I talked to their front man, Odin, while we were waiting for Los Dynamite to play, and he had a great attitude and seemed real psyched to be down here. Then they came out and blew me and the audience away. The idea of live techno doesn't appeal to a lot of people, but everyone in that tent was moving within 2 minutes of the first song. Odin was all over the place, playing drums, tweaking the Korg, playing bass, and he probably played a xylophone too, but I couldn't see from my angle. For God's sake, his name is Odin, dammit!

Brilliant.

Immigration Follies at the Travis County Jail

2008-02-17T15:00:00.001-06:00

(Work has been very busy, I just relaunched our website, and we've had solid plans for the last 6 weeks. A weekend with no plans, and I have a whole bunch of stuff to write about. For God's sake, relatives of my friends are taunting me.)

Recently, the Travis County Sheriff invited the Immigration and Customs Enforcement division of the Department of Homeland Security to set up an office in the Travis County Jail. ICE has recently hired a bunch of new agents and is trying to deport as many folks as possible and one the easiest ways they see to do this is to grab everyone they suspect may be illegal at local jails.

The uproar, even among lawyers, has been very loud. There's a lot of folks who suggest that the effects on locals will be huge by deporting people who were otherwise detained for non-criminal offenses (maybe unpaid traffic or parking tickets??). Families will be ripped apart and forced to leave well-established lives behind (and at one meeting on the subject I attended, several people noted that this had already happened in the mere days that policy had been implemented.)

But reasonable people (and unreasonable ones, too) can disagree about whether this is such a bad thing. After all, I've had a few conversations where I've been made to feel that just because I don't think we should have a screen door at the border, I've got to turn my pinko-liberal card in. So the biggest and best objection I have to the scheme is one Jamie at Austin Criminal Defense Lawyer recently nailed down: that this scheme allows ICE to detain anyone who they think may be here illegally. This means that once the bond for a criminal charge has been set and the detainee is free to go, ICE can essentially hold that person until they prove their citizenship. I don't know about a lot of you, but I don't carry my birth certificate or my passport around with me. So it could theoretically be a couple days before they are released.

This scheme seems similar to the phenomenon known as "DWB", or Driving While Black. This policy encourages law enforcement to engage in discriminatory conduct. Faced with the dilemma of arresting someone or just giving them a citation and a notice to appear? Well, are you brown-skinned? Is your last name Martinez? Well, then you're going to spend a couple days locked up while we sort this thing out. You don't mind, do you?

All Austinites should mind and all Austinites should be pissed off. But I won't hold my breath.

UPDATE: Apparently, Phoenix PD is starting to use the same policy.

UPDATE 2/19/08: If you question whether or not citizens actually are getting caught up in this web, take a look at what ICE's Deputy Director fo Detention and Removal Operations testified to before Congress. Keep in mind, he is admitting that citizens have been deported. Not just detained, but deported!!! As in grabbed off the street and taken to Mexico! Does it have to happen to you or someone you know before you care?

Cats don't like Kiddie Porn either

2008-02-16T17:45:00.004-06:00

A woman called the Austin Police Department a few weeks back after her cat found something between the cabinets and the ceiling in her apartment. The woman had a friend stick his hand in the hole, and out popped a stack of kiddie porn DVDs. Police found some fingerprints and tracked down the old tenant, Luis Jimenez, who told police he had stuck his hand in the hole and must have touched something in there. Nice. Unfortunately for Mr. Jimenez, Article 38.23 only applies to people, not animals.

Please folks, when you move out of your rented apartment that someone else is going to occupy, don't forget to bring your rat hole stash of child pornography with you. Cats hate that shit.

Random Australia Observations

2008-01-07T11:23:00.000-06:00

Just got back from 2+ weeks in Australia. Some random observations:

- Australia has tons of camels. Seriously. In fact, Australia has the biggest wild camel population in the world. So naturally, being tourists, we had to go on a camel ride. Our guide was quite quick to correct me when I asked if the camel I was riding on was a spitter. Camels don't spit. They "hiss when they have water in their mouths." (Apparently, the Australian Bill Clinton works for the Frontier Camel Farm.) Anyway, he did confirm that camels did bite but ours seemed nice enough. They all had camel toes, though.

- We did not see a single wild kangaroo, despite being told by the fiancee and her parents that they were everywhere. We did see one whilst feeding wallabies, which are the Mini-Me equivalent of regular kangaroos. I can only regard that one as being semi-wild since it was at the tourist feeding station.

- Everything in the Outback is deadly. Lizards, snakes, crocodiles, plants, the weather, the lack of water, spiders. Even the rocks are poisonous.

- You walk into any restaurant in Australia and you are likely to get excellent food. Every meal we had in Australia featured great food, even in the middle of nowhere. Alice Springs was especially surprising. If I went to a city of 23,000 in the US, I would not expect much quality or variety from the restaurants. But Australia knows how to cook.

The service, on the other hand, was below average at best. Part of it probably had to do with the European style: slow meals to be enjoyed with wine and inattentive wait staff. Part of it seemed to be just disinterest in the customers. One cook asked us how we wanted our eggs and then told us that scrambling them would take too long. Another waiter told us that a special on the board was not available because she couldn't pronounce the Indian name (or at least that what we suspected). Still, given the quality of the food, the service thing was pretty minor.

- When we were in Alice Springs, nearly every 50 feet there was an Aboriginal sacred site. According to our hosts, it's OK to go on sacred sites (given that 2 or 3 were in the middle of their neighborhood) but it's not OK to die on them. I was given a boomerang on Christmas and my first throw ended up in one of the sites. I have no idea what that means.

- We visited Uluru (Ayer's Rock), which is Australia's most recognizable natural landmark (on land, at least). It was pretty cool to see in person, but the walk to the summit was closed while we were there. Owing to the fact that it is a sacred site, my understanding was originally that it was OK to climb the rock just not to die on it. Immediately next to instructions and rules about climbing Uluru is a plea by the Aboriginal tribe who own the park for visitors not to climb. So what they really are saying is: "Please don't climb, but we recognize that you have spent thousands of dollars to come here and we want to continue to take your money so it's OK if you really want to climb."

- De juris segregation lives in the Northern Territory. While we were in Alice, there was a grog ban in effect which prohibited the sale of alcohol to the Aboriginal communities (bush towns populated by the Aborigines). But in town, the Aborigines are welcome to drink at Todd's Tavern, so long as they don't go into the Whites Only room. I kid you not. They might not have the signs up, but they are channeling the Jim Crow South in many respects. Also, our cousins to the south, due to not having a constitution, can set up roadblocks to catch grog-runners, the Dukes of Hazard of the NT, without having to worry about a silly thing like the Fourth Amendment. Must be Dick Cheney's idea of heaven.

Life for indigenous Australians seems pretty bleak from what I saw of it. European Australians generally have a lot of hostility towards them, alcoholism and sexual abuse appear to be rampant, poverty and malnutrition are widespread, and there is little employment in the communities themselves.

When life imitates disgusting art

2007-12-10T13:23:00.003-06:00

Canada's soon-to-be worst serial killer apparently fed his victims to pigs at his British Columbia farm. I think Bricktop said it best: "Never trust a man who owns a pig farm."

(While you ponder which one of the above gentlemen is creepier looking, please c onsider that Snatch is not the only recent movie to feature pigs performing this function. Maybe it's time for the PADL (Pig Anti-Defamation League) to get to work on some full-page NY Times spreads....)

Civil Rights in Southern Louisiana Two Years after Katrina

2007-12-04T14:04:00.000-06:00

This study by the ACLU came out in August 2007, so I'm a little behind the curve here. In any event, it reveals some disturbing truths about what it means to be poor, black, Hispanic, or accused of a crime in Orleans Parish after the hurricane. Problems run the gambit from:

- Voter disenfranchisement;
- Housing discrimination ("We're not taking anymore of you people");
- Over-policing and racial profiling;
- Deplorable (read: Third World or 19th Century) jail and prison conditions (not just for people who have been convicted but who have merely been accused); and
- Continued problems with adequately funding indigent defense.

It's very depressing to even think that this sort of thing could happen here in the US and A, but I think the fact that it continues to happen in New Orleans is probably probative of the fact that it does happen elsewhere in our country (especially where the light of day doesn't or won't shine). Let's give thanks to folks like Katherine Mattes of the Tulane Criminal Defense Clinic who are out there fighting for people who don't have anyone else to fight for them.

(By the way, for those of you inclined to ignore a study like this because it comes from the ACLU, keep in mind that the ACLU is active in protecting all our right s, even those related to the Second Amendment.)

Racism in Williamson County: How far have we come?

2007-11-30T11:02:00.000-06:00

Georgetown, Texas (just up the Interstate from Austin) is very proud of the fact that in the 1920s, the local DA (and future governor), Dan Moody, led a successful murder prosecution against the KKK for what amounted to murder and organized crime. Several Klansmen were sent to the pen, and the event helped propel Moody to state office. In fact, Georgetown regularly performs the play "You Can't Do That, Dan Moody!" to celebrate this proud moment where white citizens finally stood up to the Klan. In fairness, the community's disgust with the Klan had more to do with their promotion of lawlessness and their killing of a white man than it did with a rejection of the Klan's position on racial superiority and threats to the black community.

The story makes for a nice whitewashing of the past, but the reality of racial dynamics in modern-day Williamson County is much more disturbing, much less noble, and frankly, repugnant. The prosecutor's office routinely gives much better offers to similarly situated white defendants than their black counterparts, based on a story that ran in the Austin Chronicle in September 2004. The reporter looked at two sets of defendants: 9 African Americans originally charged with distribution of crack cocaine in an alleged drug ring in Tyler and 2 White men arrested for their alleged involvement in separate methamphetamine manufacturing operations. The black defendants got harsh results: one defendant who had prior felonies received life in prison from a Wilco jury. The offers from John Bradley's DA office weren't better either: 50 years in prison for a 57 year old man, 5 years for a first time offender who sold .79 grams (less than a paper clip), and 15 months in state jail for another first timer for selling .12 grams (!!!!!).

Surprisingly (that's my tongue in my cheek there), the white defendants were made good deals. One defendant was charged with possessing with intent at least 400 grams of methamphetamine, had numerous firearms in his trailer at the time of arrest, and had what detectives called several apparently stolen trailers on his property. In an unrelated arrest, two other men were charged with possession of between 200-400 grams and were cooking when the cops showed up. Despite the fact that two of these guys had long rap sheets, they were offered 1deferred adjudication (a kind of pretrial probation) with 180 days in jail as a condition of the probation. (One defendant got 7 years in prison.)

I'll leave it to you to draw your own conclusions about why these cases turned out differently, but would Dan Moody still be proud? Would he do that, John Bradley?

Innocent after all these years? Well, time to lawyer up

2007-11-28T08:10:00.001-06:00

If you were falsely convicted of a crime and convicted and the indignation of false imprisonment, having years of year life taken away, losing your family, your job, and everything else wasn't enough, now you have to worry about the prosecutors and investigators who put you in prison suing you for libel and slander.

Dennis Fritz and his daughter

No, seriously. An Oklahoma prosecutor and former DA investigator have sued both author John Grisham and Dennis Fritz, one of the men recently exonerated for the 1982 murder of Debbie Sue Carter. The parties claim that the defendants engaged in a civil conspiracy "to commit libel, publicity placing a person in false light and intentional infliction of emotion distress."

You know, you put someone in prison for 11 years based on shoddy work and I think you waive any right to complain about the names they call you when they get out. Pussies.