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Wednesday, June 25, 2014

Defense Lawyers and Drug Cases in Kerr County; Central Park Five; Presbyterians and Gay Marriage

 Handling Drug Cases in Kerr County

Several readers have commented on how drug cases are handled in Kerr County, and asked questions about how the defense lawyers handle them. In this post, I’ll talk about the most common charge we see, possession of a controlled substance under 1 gram.

A lot of people who get charged with this get arrested in what starts as a routine traffic stop.  The officer smells, or claims to smell, marijuana, which gives them a reason to detain the occupants, question them, and then to order them out of the car. The officers do a “Terry frisk,” where they pat down the suspect’s clothes for weapons. If they feel something that they can reasonably claim is an illegal drug, they order the suspect to empty his/her pockets, and if drugs turn up, it’s a legal search and seizure.

The officers can also search the interior of the car for weapons, and if they find other contraband, the seizure is legal.

The idea is that people have less an expectation of privacy in a car, the car is mobile and evidence may disappear, and public policy protects the officers by allowing them to verify there are no weapons that can be turned on them.

Good defense lawyers interview the client, review the police officers’ statements, and if available, the audio and video record of the stop and search. The stop has to be justified by “reasonable suspicion,” i.e., some fact that would lead a reasonable officer to believe that a law has been broken – e.g., speeding, failing to stop at stop sign, a headlight out, and so on.

If there is any legitimate grounds to challenge the search and seizure, most defense lawyers will file a motion to suppress.  Most of the lawyers I know who practice criminal defense take their responsibilities seriously, and look for ways to suppress evidence, or attack the State’s case on some other grounds. Unfortunately for the defendants, in the majority of cases the evidence is there to support the search and seizure.

A defendant charged with POCS < 1 gram, without any prior felony conviction, will not go to prison. The statute provides that if found guilty, he will get probation. In most cases, there is really not an issue whether the substance was meth, coke, acid or whatever. The DPS lab has a year long backlog. If the end result is probably going to be a conviction, it is often a better decision to do a plea agreement for deferred adjudication, where there will be no conviction and the case will be dismissed if the defendant complies with all the probation terms.

With the Michael Morton Act, we don’t have to file a lot of discovery motions to get the State’s evidence. We send a written discovery request to the prosecutor, who is required to turn over all witness statements, lab reports, photos, recordings and so on. The State has always, at least since the Brady v. Maryland opinion by SCOTUS, been required to turn over evidence in its possession that could be helpful to the defense. That is what was so outrageous about the Morton case – the prosecutors withheld evidence that neighbors had seen a scroungy looking character in a beat up van casing the Mortons’ home, that his son told his grandmother that he saw a “monster” beating his mother, and a bloody bandana that was found nearby.

In a future post we’ll look at some of the more serious drug offenses, like possession of contro

Donald Trump Calls Central Park 5 Settlement A 'Disgrace'

Donald Trump isn't happy about the news that the "Central Park five" are getting a $40 million settlement after they were wrongfully convicted of raping a jogger 25 years ago.
The five black and Latino men, who were then teens, were convicted in 1989 of raping a 28-year-old woman in Central Park. But DNA evidence and a confession by a serial rapist later cleared Antron McCray, Korey Wise, Kevin Richardson, Yusuf Salaa and Raymond Santana in 2002, after the five had spent as long as 13 years in prison.
In an op-ed published in the New York Daily News on Saturday, Trump calls the settlement a "disgrace."
My opinion on the settlement of the Central Park Jogger case is that it’s a disgrace. A detective close to the case, and who has followed it since 1989, calls it “the heist of the century.”
Settling doesn’t mean innocence, but it indicates incompetence on several levels. This case has not been dormant, and many people have asked why it took so long to settle? It is politics at its lowest and worst form.

Making it up as they go along: Presbyterians vote for gay marriage

The Presbyterian Church USA general assembly voted by 429-175 to let pastors do gay weddings, and redefined marriage as being between "two people."
I don't care what consenting adults do in private, and I really don't care if they get married. After all, it will create more work for lawyers when they get divorced and fight over child custody and property.
However, it seems to me that the churches who are getting with the times are like the courts, making it up as they go along. For centuries the churches claimed the Bible absolutely outlawed homosexuality, and that homosexuals should be stoned to death. But now that times have changed, the churches change with it.
The PCUSA also voted to divest of stocks in companies that do business in Israel. From Huffington Post: 

The largest U.S. Presbyterian church narrowly voted Friday to divest from three multinational corporations that it said supply Israel with products that promote violence in occupied Palestinian territories.
The divestment, vehemently opposed by many of the nation's prominent Jewish organizations, and hailed by many pro-Palestinian activists, passed by seven votes after hours of tense and complex debate. It means the Presbyterian Church (USA) will sell its shares of Motorola Solutions, Caterpillar and Hewlett Packard, worth about $21 million.

I quit going to church several years ago because it made me almost sick to see some of the people I deal with in the legal world and know what they really are pretending to be good Christians and followers of Jesus.
I've been watching the HBO series True Detective, and a lot of what Rust Coale (played by Matthew McConneghy) says about some of the preachers and their followers makes sense.

Sunday, June 15, 2014

TCDLA Rusty Duncan seminar, Michael Morton

I attended the Texas Criminal Defense Lawyers Association’s (TCDLA) annual Rusty Duncan seminar in San Antonio last week. It’s in the top five of all the seminars I’ve been to in my 34 years as a lawyer. The speakers were all excellent and informative, and the papers are top notch. They saved the best for last, when Michael Morton spoke yesterday morning. 
Fittingly, Gerry Goldstein introduced him. Goldstein spent untold thousands of hours, along with John Raley, a Houston civil trial lawyer, fighting the corrupt, vicious powers that ran the Williamson County district attorney’s office under John Bradley, thankfully, the former DA.  Goldstein introduced Morton as his “hero,” and it is justified. Here’s the blurb on Amazon for Morton’s soon to be published book:

“He spent twenty-five years in prison for a crime he did not commit. He lost his wife, his son, and his freedom. This is the story of how Michael Morton finally got justice—and a second chance at life.

“On August 13, 1986, just one day after his thirty-second birthday, Michael Morton went to work at his usual time. By the end of the day, his wife Christine had been savagely bludgeoned to death in the couple’s bed—and the Williamson County Sherriff’s office in Texas wasted no time in pinning her murder on Michael, despite an absolute lack of physical evidence. Michael was swiftly sentenced to life in prison for a crime he had not committed.

“He mourned his wife from a prison cell. He lost all contact with their son. Life, as he knew it, was over.

“It would take twenty-five years—and thousands of hours of effort on the part of Michael’s lawyers, including the team at the New York-based Innocence Project—before DNA evidence was brought to light that would ultimately set Michael free. The evidence had been collected only days after the murder—but was never investigated.

“Drawing on his recollections, court transcripts, and more than one thousand pages of personal journals he wrote in prison, Michael recounts the hidden police reports about an unidentified van parked near his house that were never pursued; the treasure trove of evidence, including a bandana with the killer’s DNA on it, that was never introduced in court; the call from a neighboring county reporting the attempted use of his wife’s credit card (a message that was received, recorded, and never returned by local police); and ultimately, how he battled his way through the darkness to become a free man once again.

Getting Life is an extraordinary story of unfathomable tragedy, grave injustice, and the strength and courage it takes to find forgiveness.”

Now, if I had been framed for murder and spent 25 years in prison, and knew that the murderer of my wife killed at least two more women while I was in prison, I’d be bitter and want to get some payback. From what I saw of Morton, he doesn’t seem to be bitter at all. 
He talked about how people with their own agendas tried to use him, particularly the ACLU in California, who invited him to a closed meeting and discussed an unlikely alliance with Libertarians and conservative Republicans to abolish the death penalty. Then they proceeded to mock and ridicule their allies for being ignorant and stupid. 

He also said that the prosecutors and police are supposed to be the “good guys,” and that we need them and need to work with them. He described some of his fellow prisoners in TDCJ salivating when they saw on television where there was a county fair or rodeo, saying, “I love those things.” What they meant was, they were good hunting grounds. Or as Morton said, “They know you’ve got cash, and they’re waiting in the parking lot to take it from you.” He also said that someday we may be the victims of crime - your house may be broken into, your wife murdered, or your daughter assaulted.”

Morton worked with a lobbyist to get the “Michael Morton” act passed in the last legislative session. The lobbyist took him around to meet legislators who were against the bill. When they saw him and talked to him - he says some were surprised that he didn’t have a shaved head, fu manchu, and tattoos - and he asked why they opposed the bill, they changed their positions. The bill passed unanimously in both houses.

Morton could be any of us. He appears to be about 5’8’’, medium build, gray hair, and is, of course, white. I don’t know if I could survive a year in prison, much less 25. Nice, white, middle class people don’t get in trouble with the law, right? Morton quoted from the Bible:

I returned, and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all.

The Hill Country defense lawyers were well represented at the conference. Tammy Keener from Fredericksburg and Wallace Ferguson from Boerne put together a nice luncheon and about 20 people showed up. Tammy has done a great job of getting the Hill Country Defense Lawyers Assoc. resurrected. We have some very good lawyers here, both defense and prosecutors, and high quality, fair minded judges too. 

Tuesday, June 10, 2014

Obama Guilty of Treason? Why Won't Republicans Impeach Him?

Is Obama Guilty of Treason?
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
 U.S. Constitution, Art. III Sec. 3.
By that definition, I believe he is guilty. Releasing five hard core Taliban/al Queda killers that our military personnel died capturing back to the battlefield so they can kill more Americans sounds like giving our enemies aid and comfort. 

It is clear that Obama has no respect for the rule of law or even for America. At this week's D-Day commemoration, he smacked chewing gum. I learned not to do that in kindergarten. This is the same week he traded four hardcore Talibans for one deserter and had the deserter's anti-American father with his Osama Bin Laden beard mumbling Muslim prayers in the Rose Garden. 

I wrote Congressman Lamar Smith and asked when he and other Republicans were going to do something about Obama's disregard of the Constitution and flagrant violations of the rule of law. I got this response, probably a form letter:

Well, that is not good enough. Here's how the process works: 
  • The Chairman of the Judiciary Committee will propose a Resolution calling for the Judiciary Committee to begin a formal inquiry into the issue of impeachment.
  • Based on their inquiry, the Judiciary Committee will send another Resolution to the full House stating that impeachment is warranted and why (the Articles of Impeachment), or that impeachment is not called for.
  • The Full House (probably operating under special floor rules set by the House Rules Committee) will debate and vote on each Article of Impeachment.
  • Should any one of the Articles of Impeachment be approved by a simple majority vote, the President will be "impeached." However, being impeached is sort of like being indicted of a crime. There still has to be a trial, which is where the US Senate comes in.
When a government ceases to represent the citizens and decides that it is a privileged class that the citizens are supposed to serve,
Stupid is as Stupid Does: Montana Judge to Be Censured Over Rape Comments
The Billings judge said a 14-year-old rape victim was “older than her chronological age”

A Montana judge will be publicly censured and suspended without pay for 31 days for saying a 14-year-old rape victim was “as much in control of the situation” as the 47-year-old teacher who raped her, the state Supreme Court announced Wednesday.

Wednesday, June 4, 2014

Devil goes to church part 2; Why doesn't Congress impeach Obama?

I found this quote by Randy Wayne White, a mystery writer, that I think applies in part to Kerrville:
"Florida is a transient state in which too many rootless people care nothing for the past nor the state's future. Florida is a vacation destination or a retirement place, as temporary as time spent in a bus station.
"Like a bus station, Florida attracts con men and predators. It always has. Florida always had."

A reader took offense at my post "The Devil Goes to Church," about a preacher named Chuck Adair. The reader left a comment to the effect that I am being too rough on the good reverend. Well, let's see what he did (from Dmagazineonline.com.)
"Church Minister Chuck Adair’s Life Is Complicated. Adair was a married minister at Skillman Church of Christ. Then he had a relationship with a 13-year-old girl. It wasn’t sexual, but by the time she was 15, it sure was. A private eye was hired, the couple fled to Las Vegas, but the cops caught up. Adair landed in jail with a 10-year sentence, but that didn’t stop him and his child-lover from marrying in jail, in 1998, three days after her 18th birthday. Two years later, the girl filed for divorce. In 2005, Adair was paroled, and 18 months after that, he was back at Skillman Church of Christ and married to another congregation member. But listen, it’s complicated, Adair says, and he promises not to go on any youth group trips. But church Easter eggs hunts? That’s cool."

Why won't Republicans impeach Obama?
I am fed up with the Repubicans, including our own, Lamar Smith, who wring their hands and moan and groan how lawless Obama is but do nothing.  The latest outrage, releasing five top terrorists for a ratshit deserter should be the last straw.