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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.


  1. In a POCS < 1 gram case, what motions should be filed as part of a standard defense?

  2. Deferred adjudication does not work so well anymore. Most professional licensing bodies and high end residential rental applications specifically ask for conviction and or deferred adjudication history, and can be used a grounds for denial. This will follow the client for the rest of his / her life.

  3. Richard, thank you very much for posting on this subject. I never really understood how murky the world of criminal defense of a drug case is. What about confidential informants that snitch to get off of a case? This seems to be below the level of transparency for government. How does the average citizen provide oversight of our government in this area? I see some guys arrested time and time again for serious crimes and never go to jail and the cases seem to stay open for years. Are these guys CI's? Who decides who can be a CI and what are the conditions and circumstances? Who provides oversight of the CI business?

  4. Richard, let me ask a dumb question. Since you do not file motions for exculpatory evidence, does this mean you and the prosecutor agree on what may constitute exculpatory evidence in each and every case? For example, one particular prosecutor likes to talk about how honest police are. If she had knowledge that a police officer had been disciplined for not being totally honest, would this be absolutely be exculpatory evidence in a case that hinged on the honesty of this officer, or could she withhold the evidence and argue it did not meet the test if it ever came to light? It seems if you file a motion on point you can define by line item what constitutes exculpatory evidence, and box her in more. How does this work?

    The latest news in San Antonio and Grits for Breakfast concerning falsified crime lab reports is downright shocking. Have you read this latest information and does that change the way you feel about the importance of challenging crime lab reports?

  5. Attention Hill Country Defense Lawyers: Another Texas Crime Lab Problem