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Recent Blog Posts
Virginia v. Moore in Texas
In Virginia v. Moore the Supreme Court held that evidence is admissible under the Fourth Amendment even though obtained in a search incident to an unlawful arrest that was on probable cause.
In other words, if the state makes something a non-arrestable crime (in Virginia, driving with a suspended license) and the police break state law by arresting a person for it, the violation of state law does not so offend the Fourth Amendment that the evidence should be excluded.
In still other words, a "search incident to arrest" does not mean a "search incident to lawful arrest" but rather "a search incident to arrest with probable cause."
A state constitution may give more protection than the U.S. Constitution, but Virginia's Constitution does not appear to contain a prohibition against unreasonable searches and seizures. (That's not a Bill of Rights. That's a Bill of Rights!)
The Dignity of the Judicial Process
The more I think about it, the more inclined I am to side with Adam Reposa.
From the April 17, 2008 Austin American-Statesman article about The Reposa Affair (H/T Bad Court Thingy for calling my attention to the highlighted bit that I missed):
Saying that Austin defense lawyer Adam Reposa tarnished the dignity of the judicial process by making a lewd gesture in court last month, visiting state District Judge Paul Davis on Wednesday sentenced Reposa to 90 days in jail for contempt of court.
Paul Davis, a retired civil district court judge, is clearly unfamiliar with "the judicial process" in a criminal case. Consider what happened before Adam made the jack-off gesture that supposedly "tarnished" it:
Adam's client was pulled over by the police, asked to do tricks for the cops, handcuffed, searched, transported to the police station, and asked to blow into a tube.
Things Only Civil Lawyers Would Say, Part I
From the letters to the April 14, 2008 Houston Chronicle:
Justice here isn't partisanI write in response to the letter written by Dana Lejune that was published in the Chronicle Thursday. (Please see "The way to get new judges.") I am particularly disturbed at the characterization that justice in our county is dispensed with partisan labels. There is no "Republican" justice any more than there is "Democratic" justice - there is simply justice.We need to avoid involving our judges in political mudslinging, and the suggestions of Lejune surely lead us in exactly the wrong direction. We dare not permit the politicization of our judiciary. We ask our judges to follow and apply the law fairly and impartially.In Harris County, we are fortunate to have a group of judges who have followed and applied the law fairly and impartially for many years. Sometimes their ruling is for the plaintiff and sometimes their ruling is for the defendant; in criminal matters, sometimes their ruling is for the accused, sometimes for the state. Those rulings depend upon the facts of the case and the applicable law. These judges are not politicians. They are lawyers who have made a great sacrifice for our county.We should elect judges who have experience, who are fair, who will follow the law, who do not have a political agenda and who know what they are doing on the bench.Our judges serve a critical role in our society: They uphold our Constitution and protect the rule of law. Thus, it is imperative that we all give serious thought and consideration to those who serve on the bench and not just vote according to a political agenda.ALISTAIR B. DAWSONchair, litigation section, State Bar of Texas, Houston
ACDLA and The Reposa Affair
Austin criminal-defense lawyer Keith Lauerman, on his sparse blog, gives his take on the winners and losers of last week's contempt hearing in which Adam Reposa got 90 days in jail for making masturbatory gestures toward a judge. Keith, who was there, explains how the County Attorney's Office, Mr. Reposa, and the Austin Bar were both winners and losers in that case.
The Bar, in Keith's view, was a loser because:
Nowhere was the hypocrisy screaming out more than the behavior of the Association. In an organization that penned its name to a letter protesting the ICE office in the jail and other various endeavors, it couldn't bring itself to protest the absence of due process to one of its own. As many of our violent clients walked out of jail on probation with treatment and counseling as recommended, a criminal-defense lawyer was looking at enough jail time to ruin his practice. Had you substituted another lawyer for Reposa, the Association probably would have acted. It was an exercise in picking and choosing support depending on who was popular, and looking the other way on the principles involved.
Always Ready, Seldom Prepared
The title of this post is, according to Terry MacCarthy (buy the cross-examination CDs!), the criminal-defense lawyer's credo. I had always thought of it as descriptive - the way we are - rather than prescriptive - the way we should be. We should be prepared, shouldn't we?
Yes and no. There are things we can prepare for, and things we can't. Before trying a case, the criminal-defense lawyer (prosecutors, you can skip this part; it doesn't apply to you; go on doing things the way you always have; these are not the droids you're looking for) must be intimately familiar with the facts and with the law. She should know what the potential evidentiary issues are, both for her and for the government, and should know what the best arguments are on both sides.
She should know her witnesses' stories well enough to help them tell those stories without a list of written questions - with no notes, or minimal notes. The criminal-defense lawyer should know the story she wants to tell on cross-examination well enough that a list of topics or key points will keep her on track.
Scientific Study of Genes' Effect on Behavior
Here's an excerpt from yesterday's Washington Post article by Rick Weiss on the use of DNA evidence in court for reasons other than identification:
... [W]hat of the murderers, rapists and other violent criminals who fall outside those narrow bounds? Can some, at least, blame their behavior on their genes?Studies have shown that up to 62 percent of antisocial and criminal behavior is "heritable," a rough measure of a genetic contribution. And in a few cases, courts have allowed arguments seemingly akin to "My genes made me do it."
Weiss discusses several cases in which defendants have sought to have juries consider genetic predispositions to depression, mental illness, and violent behavior.
In discussing "[w]hether evidence of an inborn penchant for violence can be relied upon to evoke a jury's sympathies", Weiss writes:
A Death in the Family
The criminal bar - defense and prosecution - are a big dysfunctional family. We go at each other hammer-and-tongs in court, but when one of us is wounded or sick, the rest of us usually pitch in to help.
This weekend the family lost one of its own: a defense lawyer whose significant other was a prosecutor passed away.
When a defense lawyer dies, aside from the consolation due her loved ones, her clients have to be taken care of; for the sake of family and clients, fees have to be collected; clients have to be defended; bills have to be paid, offices shut down, and utilities canceled. Most of us don't have associates or law partners to do all of this for us.
The Harris County criminal defense bar has already started coordinating the winding-up of the deceased lawyer's practice; many lawyers have volunteered to handle the lawyer's open cases.
This is not an uncommon situation - we lose a couple of criminal-defense lawyers a year in Houston - but it's not one we like to think about before it arises.
Fly the Friendly... No, Better Make That the Paranoid Antisemitic Skies
Did they go to the Lykos Flight Attendant Academy?
Sic Semper Tyrannis
When Gale Ladehoff, principal of the Clear Horizons Early College High School in the Clear Creek Independent School District (and Official Woman), assigned a student to Saturday school because of excessive absences, she may not have known that the absences were due to a medical condition. She may not have known that this unwarranted discipline would cause the family logistical difficulties.
The student's father met with Ms. Ladehoff and tried to explain the situation to her. She was not interested. I'll let the student's dad, Houston family lawyer Ron of Ron's Insanity, pick it up here:
Tyrants have no appreciation for dialog. [Principal Gale Ladehoff] says that "rules" must be enforced. I, in my usual tactful and discerning manner, tell her that this is simply asinine. She obviously has no appreciation of my attitude. While there was no real attempt by her to dialog, things really break down when I tell her that i don't give a damn about her rules.She tells me the meeting is over. I'm standing there dumbfounded. "You're stopping the meeting because I disagree with you?" I ask. Apparently once a tyrant declares that the meeting is over, you suddenly become persona non grata and become subject to forced removal. Her associate asks, "should I call security?" My sarcastic response to her was, "oh yes, call security, because I'm obviously a threat."Well, tyrants, when having their authority questioned, tend to rely on armed force, so security was called. Fortunately for me, by the time they arrived, I'd already left and was trying to get my son and his belongings rounded up for the ride home.Now, I have a major problem with someone calling the police on someone just trying to have a discussion with a public official in a public place. So, when I get home, I email the tyrant, er I mean principal, and tell her that I am calling a meeting with her superior regarding this incident.The response to my email? While I was expecting a response telling me the time and date of the conference, what I received was a note from the principal that my son was now suspended for 3 days and will be assigned to a disciplinary alternate educational placement (known in the educational establishment lingo as DAEP). Yes, disagree with the tyrant and we ship the family members off to the concentration camp.
Improvisational Blogging II
I still haven't gotten to the inevitably brutal Problem of the Working Class post (using the words or phrases "pull yourself up by the bootstraps"; "economic expansion in the service sector"; "a symbolic border wall is the best solution"; "I agree wholeheartedly with Lou Dobbs and Pat Buchanan"; robber barons; the productivity wedge; debt; Scandanavia; and zombie on methamphetamine) suggested in comments to my Improvisational Blogging post of last week, but I have done Lanyard Nation and The Commerce Clause (both of which probably seem idiosyncratic, even for me, to the uninformed reader... maybe I should add an explanatory note to each one? Nah.).
Austin criminal-defense lawyer Jamie Spencer is soliciting suggestions for his own improv posts.
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