Posted on April 28, 2009 in Uncategorized

Soon to be ex-prosecutor George Weissfisch's second, third, fourth, fifth, and sixth ideas for improvement of the Harris County DA's Office (here's the first in the series):

#2 INTAKEThere is no need to screen cases at intake by hand.Weissfisch Solution: We create a macro on the computer just like the macro for MOEP's. When a charge is taken instead of filling in the stops by hand and counting the priors to set the bond and writing the enhancement paragraphs, we have the computer allow us to select the offense from a list – then the pleadings appear and we select the appropriate stops or add in language. The bond is automatically calculated based on the history in the computer. The DA should be allowed to change the bond if necessary. If the bond is higher than the standard schedule then a high bond request automatically pops up for the reason to be entered and will also print out (as it does with moeps) further the prosecutor should be able to select from priors as to which will be used for enhancement. If priors are selected that don't work for enhancement.(for example if the prosecutor is trying to use a STJ to enhance a 3rd degree- even though I know this NEVER happens) then the computer should alert the prosecutor. The prosecutor can override the alert if she believes that the enhancement is correct. Then everything gets printed.This system would save time, eliminate the need for the typists, eliminate mistakes made from bad handwriting and eliminate a lot of the careless mistakes made b/c the prosecutor is tired (at 3:30 a.m.) and eliminate the need for the prosecutor to place her initials at the top so that we know who screened the case, since the computer would track who it was. High bond requests would never be missing.To be warrantsTo be warrants are often done wrongWeissfisch solution: There should be a template for each of the common offenses with all of the essential elements already included. This would make sure that prosecutors don't leave out necessary elements and would save time in typing the to be warrant. Plus: when warrants are rejected b/c something is done wrong the prosecutor is never told what he did wrong, therefore the prosecutor thinking that everything went fine the last time continues to do to be warrants in the same incorrect way each time and never learns. A copy of all rejected warrants should be given to the prosecutor who wrote it so that they can learn from their mistake To be s and calls should be split up.The biggest waste of time that occurs at intake is when a prosecutor is working on a To Be warrant with an officer present and interrupts his work to answer a call or two, and then gets back to the to be.Often times a prosecutor can be interrupted several times during one to be. As mentally draining as an 8 hour shift at intake is already it is inefficient to lose ones train of thought while working on a to be to try to pay attention to the officer on the phone who has a "cluster to run by you" and then try to remember where one left off on the warrant.Weissfisch Solution: assign one prosecutor to phone calls and another to to bes for 2 hours and then switch off. Plus the complaint desk and the chief are available in the event that either one gets swamped at any given time.IDEA #3: NO MORE TO DO'SIt is unnecessary for DA s to waste time doing to dos to request photo spreads, witness & defendant's statements, 911 tapes, scene photos, scene videos, sur videos, search warrants etc.Weissfisch solution: We create a list of all the essential items that we will need in every case if they exist. The district attorney meets with the chief of each police agency and asks them to implement a policy that all of their officers turn over a copy of all the items on the list (if they exist in that case) at the time they turn over the offense report. This way the defense can look at everything they need at the first setting and the case does not need to be delayed to get these items. Most importantly the #3 doesn't waste hours a day trying to get in touch with someone to send these over. If the officer doesn't have something available then they would have the responsibility to send it over when they get it.If any agency in uncooperative and refuses to make this a policy in their organization then we simply do not extend that agency the courtesy of accepting their charges over the phone. We would require those officers to come to intake for charges and present all of the items on the list before we accept charges.The #3's only real to do should be talking to victims and getting ready for trial.IDEA #4: Street contractsNot allowing street contract prevents officers from getting the larger players in the drug world.Having a requirement that all defendants who wish to work a contract with the DA to help catch other drug dealers be first taken into custody and their contract be in writing seems to make sense on the surface. However narcotics officers have stated to me that when a drug distributer gets arrested on a large drug case, the higher level drug dealers become aware of the arrest, when that defendant suddenly appears on bond and shows up trying to make buy, these dealers quickly figure out that they are working a contract and don't deal with them.By allowing the officers to call special crimes and get permission (if def meets the criteria) to allow a street contract then the def can make the deal with the bigger dealer before that dealer could know that the defendant has been caught and is working with the state.Specifically in the meth community, larger dealer are very aware of anyone being taken into custody.IDEA #5: REDACTINGRedacting of offense reports by prosecutors creates a huge time burden on everyone and creates delays in the resolution of cases while defense attorneys wait for their copy of the report. The plan for prosecutors to redact ORs in addition to their already overburdened work schedule is unsustainable. Redacting with a black sharpee that does not actually cover the information to be redacted is worse than not redacting at all. If there is in fact liability for allowing the def atty to have the identifying information, then doing something to prevent this that we know is insufficient clearly places prosecutors at a greater risk for liability under civil law, because it shows that we could foresee the harm and we have taken steps, that we know are insufficient, to prevent that harm.Weissfisch Solution: A redacted copy of every report needs to be in the file to give to def atty from the very beginning of each case.This needs to be done at intake (perhaps by the typists that we no longer need – see weissfisch solution on intake).There is computer software already available that can redact (and properly cover sensitive material). The ORS need to be scanned in (which is the same work required to make a xerox) and the program redacts the material that we program it to redact and then a def atty copy is printed which is marked def atty copy (on every page) the computer can even track how many pages are printed/redacted for that OR # so that if there is a question later as to what was turned over to def atty we would know how many pages we gave them.Under this system on pia or at very least by the next setting we hand over a copy of the OR to the def atty. If we really want to get fancy we have intake print out a copy of the confidentiality agreement already filled out with defendant's name cause # and OR report #.IDEA #6: TRAININGMany prosecutors have difficulty receiving their required CLE each year and the much of the CLE training is very general and not very practical. We often find prosecutors move to felony (who are very talented) but who do not know how to try felony offenses. In some instances when prosecutors are promoted to #2 they are unprepared (or lack confidence) for the types of cases they begin trying.Weissfisch Solution: The office could hire me (or someone else like me) as an independent contractor, I could:a) Give a CLE each month (1 ½ hours each) covering different areas of trial. (to include the required hours of ethics)b) Or I could work with prosecutors as they promote to felony (or when they promote to #2)c) Or we could institute a mini baby prosecutor school (1 week boot camp) for new prosecutors (especially if we institute my #4 policy) that way the chiefs who are busy with their cases wouldn't need to spend as much time with the new hires. I could give a 1 week intense boot camp each month for all new prosecutors and then 6 months later they go to TDCAA's baby prosecutor school.This would give prosecutors proper training at a lower cost. I have taught for TDCAA, NDAA, and given in house CLEs in addition to the training I have given to the prosecutors who have worked in my court.I have been teaching TaeKwonDo for the past 21 years in my business.I enjoy teaching, I am good at it and would love to share my knowledge with current & future prosecutors.

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 Posted on April 27, 2009 in Uncategorized

The last time the Texas House of Representatives impeached a judge was 1975. O.P. Carrillo of Duval County was the respondent. Leon Jaworski prosecuted the impeachment in the Senate.

I've been hanging around the Texas Capitol since midday waiting for the Texas House of Representatives Judiciary and Civil Jurisprudence Committee to start hearing House Resolution 480, relating to the appointment of a committee to investigate the impeachment of Sharon Keller.

It's 6:37pm, and the committee's meeting just began. The committee (Todd Hunter, chairman) has four pages of bills to consider; HR 480 is on the third page.

There's at least one person here to testify against HR 480: ex-Court of Criminal Appeals Judge (and ex-TCDLA President) Frank Maloney. There are a handful of legal luminaries here to testify in favor of HR 480: Broadus Spivey, Chuck Herring, Jim Herrington, Justice Michol O'Connor and others. And me. I'm the throwdown witness, in case everyone else has to leave before it's time to testify.

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 Posted on April 27, 2009 in Uncategorized

Please, would you toss a few bucks to M.D. Anderson Hospital's ovarian cancer research program on behalf of Ellen Alexander? Ellen is a U.S. District Court case manager and one of the world's nicest humans; she's joining U.S. Probation Officer Becky Pope in the Sprint for Life 5K Run & Walk.

Don't worry if you can't give more than Mike Ramsey. Every little bit counts.

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 Posted on April 25, 2009 in Uncategorized

"It is important that the committee be made aware of the public's desire for impeachment," [Texas Representative Lon] Burnam said. "I encourage anyone who wishes to see justice done in this matter to come to room E2.010 in the capitol on Monday afternoon and register ‘for' House Resolution 480."

(Email press release, via Grits.)

I'll be in Austin Monday afternoon. If you think Presiding Judge Sharon Keller should at the very least be impeached and removed from office, please join me.

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 Posted on April 25, 2009 in Uncategorized

Talking about waterboarding and other torture.

I'm allergic to listening to or watching myself.

Would one of you please listen and tell me who it was that Judge Wise claims verified that "enhanced interrogation" led to an attack being foiled?

Gracias.

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 Posted on April 24, 2009 in Uncategorized

I got in a furious 140-character-at-a-time argument on Twitter with Mark Jakubik, author of the Philadelphia Criminal Defense Lawyer Blog (and the Pennsylvania Estate Planning Blog, and the Philadelphia Litigation Blog, and the Pennsylvania Family Law Blog... hrm) yesterday about waterboarding and torture. Stepping back, I had to ask myself: Why am I so upset up about the torture memos?

When we were recording a radio show today, Judge Ken Wise, arguing for waterboarding, said "it's a big world out there," as though there were things that we cloistered Americans couldn't understand.

Unlike most Americans, I've lived in that big world: I spent half of my childhood overseas. My dad worked for the CIA for 25 years, and his work took the family to postings in Germany, in India, and in Thailand. So much of my view of America is based on how it looks from outside. Way outside - in 1987, the world was much rounder than it is now, and India was a lot farther from the U.S. There was no email or internet, and mail between New Delhi and the U.S. - through the State Department - took two weeks each way.

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 Posted on April 23, 2009 in Uncategorized

81R8266 JSA-F By: Burnam H.R. No. 480 R E S O L U T I O N WHEREAS, The House of Representatives of the Texas Legislature has exclusive power to present articles of impeachment against a state officer under Section 1, Article XV, Texas Constitution, and Chapter 665, Government Code; now, therefore, be it RESOLVED, That the House of Representatives of the 81st Texas Legislature adopt the following procedures to consider the impeachment of Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, for gross neglect of duty and conducting her official duties with willful disregard for human life: SECTION 1. SPECIAL COMMITTEE ON IMPEACHMENT. The House Special Committee on Impeachment composed of seven members of the House of Representatives shall be appointed by the Speaker of the House. The Speaker shall designate a committee member to serve as chair of the committee and a committee member to serve as vice-chair of the committee. SECTION 2. INVESTIGATION; ARTICLES OF IMPEACHMENT. (a) The committee shall conduct an investigation to consider whether to recommend that under Section 1, Article XV, Texas Constitution, and Chapter 665, Government Code, the House of Representatives adopt and present to the Texas Senate articles of impeachment against Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, for gross neglect of duty and conducting her official duties with willful disregard for human life in connection with her actions on the evening of September 25, 2007, including her apparent irresponsible refusal to abide by the prior practice of the Texas Court of Criminal Appeals in order to receive the appeal of Michael Richard, which conduct may have resulted in Mr. Richard's deprivation of life without due process of law as guaranteed by the Fifth Amendment to the Constitution of the United States and Section 19, Article I, Texas Constitution, by means of a potentially unlawful execution by lethal injection, and in the embarrassment of the State of Texas in a manner that casts severe doubt on the impartiality of the Texas Court of Criminal Appeals and the entire criminal justice system of this state. (b) The committee shall submit a report of its findings to the Speaker of the House and the full House of Representatives as soon as reasonably practicable, but not later than the 90th day after the date the committee is appointed. If the committee recommends impeachment of the judge, the report shall contain a draft of articles of impeachment. SECTION 3. POWERS; ADMINISTRATION. (a) The committee shall meet at the call of the chair and may meet in executive session if approved by a majority of the members of the committee. (b) The committee has all the powers granted to a standing committee under the Rules of the House of Representatives and under Subchapter B, Chapter 301, Government Code, including the power to issue process to procure testimony or other evidence. (c) On the request of the committee, the House of Representatives or the Texas Legislative Council shall provide the staff necessary to assist the committee in carrying out its duties. (d) The operating expenses of the committee shall be paid as determined by the Committee on House Administration. SECTION 4. EXPIRATION. This resolution expires and the House Special Committee on Impeachment ceases to exist on January 1, 2010.

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 Posted on April 22, 2009 in Uncategorized

Dear Harris County judges:

The following is a non-exhaustive list of conduct, engaged in by you or your staffs, that is likely to get you grieved:

1. Telling defendants, "If you don't hire a lawyer, you're going to come back every day and stay until 11:30 until you hire a lawyer."

2. Telling defendants, "Go hire a lawyer from the hallway."

3. Telling defendants, "You made bond. You can't have an appointed lawyer."

4. Removing appointed counsel from cases when defendants make bond before substitute counsel is hired and without a hearing.

5. Telling defendants, "Hire a lawyer or go to jail."

6. Jailing people for not hiring lawyers.

The days of the Harris County Criminal Lawyers trusting the Commission for Judicial Conduct to do its job are past. If a grievance is filed, it will be news.

Most of you would never do any of these things. That's great. No need to protest. I hope your staffs realize that you would never do these things.

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 Posted on April 22, 2009 in Uncategorized

1. Israel can get by without torture. What's wrong with us?

2. Isn't "we will absolutely defend those who relied on these memos and those guidelines" too close to "they were just following orders" for comfort?

3. Pretending for the sake of argument that torture makes a country safer, would you rather live in greater safety in Afghanistan, China, Iran, Saudi Arabia, or Syria; or in less safety in the United States of America?

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 Posted on April 21, 2009 in Uncategorized

1. Texas narcotics cops get an anonymous tip that someone is carrying drugs in his car.

2. They call a cop in a marked unit to follow him.

3. The uniformed cop watches for a traffic violation (changing lanes without signaling is popular).

4. The uniformed cop stops the suspect, arrests him for the traffic violation, cuffs and stuffs him, then searches his car "incident to arrest".

The rationale of this last bit - the search of the passenger compartment of a car incident to arrest - was that Chimel v. California allowed police to search the space within an arrestee's immediate control - "the area from within which he might gain possession of a weapon or destructible evidence." The idea was to protect the officers at the scene and prevent the destruction of evidence.

New York v. Belton held that the space within an arrestee's immediate control included the passenger compartment of a vehicle and any containers therein. This rule was used for 28 years to justify searches of the passenger compartments of vehicles even after their arrested occupants had been cuffed in the back of patrol cars (and therefore could not possibly gain possession of any weapon or destructible evidence).

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