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Recent Blog Posts
The UCC and the BAR
Georgia public defender S.C. Ruffey's comment about his fondness for the Uniform Commercial Code brought to mind a special kind of character that pops up from time to time in a criminal law practice.
[Digression: Austin criminal-defense lawyer Jamie Spencer talks about "how to rank high on Google's natural results." I have heard - and it makes sense - that a page that uses the phrase "Houston criminal-defense lawyer" or "Houston criminal defense attorney" will rank higher on Google than a page by a Houston lawyer that talks about criminal defense trial lawyering without those words strung together in that order, even though it's not usually necessary for a Houston lawyer practicing criminal defense to use the words "Houston criminal defense" in a post about the subject. I'd like Defending People to pop up at the top of a Google search for "Houston criminal-defense lawyer" or "Houston criminal attorney," but blatantly inserting those phrases into a post has always seemed a bit obnoxious. Your thoughts? End of digression.]
Do You Love the Law?
Are you passionate about the law? Do you think the law is a beautiful thing? Do you adore it?
Not I.
The law is a street fight. It's trench warfare. There's nothing beautiful about it. It's inelegant, messy and dangerous. Sometimes the right side loses. Often everyone loses.
Our justice system's the worst possible - except for (to crib shamelessly from Churchill) all the others that have been tried.
Justice? Justice is a whore. Some people think they can look at the offense report in a criminal case, investigate, interview witnesses, and know what the accused deserves. These people are delusional about their own abilities and importance.
Other people write articles for the Texas Bar Journal about their fields of law; if the articles not about trial law or criminal law, or if they're written by people who call themselves "litigators" I generally skip them. I don't care who the next State Bar of Texas president will be, or who's running the Texas Young Lawyers' Association. Most months I read the Texas Bar Journal only to see who's been disbarred and who's died, and to make sure that I'm still on neither list.
70 “Predator” Probations
I'm glad the Harris County DA's race is almost over. Partisan politics and offices in the criminal justice really shouldn't mix. In this election, both sides have tried to deceive the public.
Over at the Elect Kelly Siegler Kelly Blog you can read about Pat Lykos's deceptions; here's one from Siegler's campaign.
Kelly Siegler's campaign literature says that Pat Lykos placed 70 "child sex predators" on deferred adjudication probation.
There's no indication of what they mean by a "child sex predator" (nineteen-year-olds with fifteen-year-old girlfriends?) but that's not the deception. That's just an effort to make the voters afraid.
The deception is this: in order for a judge to put a person on deferred adjudication probation, the State of Texas must approve the accused's jury waiver. If the government doesn't agree to waive a jury trial, deferred is off the table. In every one of those 70 cases, the government agreed to let Judge Lykos set the punishment, to include deferred adjudication.
Reconsidering General Deterrence
PJ wrote, in response to a comment of mine to The Only Viable Threat:
I will take exception to your claiming deterrence of others as a legitimate purpose of punishment. It ought to be considered unethical to harm people for the purpose of teaching other people something. For example, if a judge determines that, based on the circumstances of the offense and a defendant's background, he deserves 10 years imprisonment, but that if he is given a 25-year sentence it will deter a future crime, is it just for the judge to give him the 25 year sentence? Isn't this only punishing the defendant for the future crime that somebody else would have committed? I actually think there are some serious due process issues implicated in that view.
I had taken for granted that general deterrence - like specific deterrence, incapacitation, and rehabilitation and unlike retribution - was a legitimate goal of punishment (just, I suppose, as most people take for granted that retribution is a legitimate goal of punishment).
The Only Viable Threat
The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.
AHCL, at the Elect Kelly Siegler Blog can be forgiven a bit of snarkiness when she reads:
Defending People is about protecting the people, one at a time, from the only viable threat to their liberty: their government.
After all, to people like AHCL and her core readers, who either serve the government or are scared of things that go bump in the night and want the government to protect them, the idea that the government is anything but noble is anathema. We wouldn't expect them to readily accept the notion that the government's protection has a price, much less that the price of that protection is liberty, and very much less that the government is the only viable threat to our liberty.
Paging Malum
Malum in Se, are you out there? Please let us know that you're okay and still fighting the good fight.
Three Stupid State Tricks
Williamson County's John Bradley says, "The government has already decided, as a matter of law, that [marijuana] is not available for such a [medical] purpose. No defense permitted." (H/T Robert Guest, via Grits.) Oops, sorry, John!
DPS Troopers are shopping for Denton, Dallas, and Tarrant County judges to "go to for blood warrants." Not to worry, they already have judges they use in McKinney County.
In Houston, HPD DWI Task Force officer Paul Lassalle wants to make sure HPD doesn't have to actually use the video equipment that state law requires it to have and to maintain. Hmm. Why would the DWI Task Force not want video recordings of people arrested for DWI? Could it be that they're arresting people who look sober and sound sober? Well, no matter. Not using video is okey-dokey with Harris County prosecutor Warren Diepraam. See the emails in the link, and remember this the next time the State complains about how difficult DWI cases are to prove.
Rosenthal in Contempt
Judge Kenneth Hoyt today held Chuck Rosenthal and his lawyer, Harris County District Attorney's Office General Counsel Scott Durfee, in civil contempt, ordering Rosenthal to pay $18,900 in "attorneys' fee sanctions" and making Durfee jointly and severally liable for $5,000 of that.
Here's the order.
Here's the motion. I think the motion could have supported a criminal (punitive, rather than restorative) contempt finding, with a larger fine and even jail time, but $18,900 is a pretty good whack, and civil contempt only has to be proven by clear and convincing evidence, rather than beyond a reasonable doubt.
Judge Hoyt comes down hard - but not too hard - on Chuck; I don't know if $18,900 will make an impression on him, but it would on most of us. I was a little surprised at how hard he came down on Scott, but it appears that Judge Hoyt thought that Scott had maintained inadequate control over his client and then been less than candid with the court and tried to conceal Chuck's deletion of the emails.
Nullification Resources
If you're sitting on a jury and the facts and law require you to convict but your conscience requires you not to, you must follow your conscience and acquit. Here are some resources intended to educate you, as a juror, of this right:
The Fully Informed Jury Association FIJA Juror's Handbook Kelly Ross on Nullification "Jury Nullification: The Evolution of a Doctrine" by Clay ConradErowid's Jury Nullification Page
(Guest Blogger, I'm in Harris County. Is this enough to get me indicted as a party to perjury under your theory?)
Jury Nullification: The Book
My friend, fellow Houston criminal-defense lawyer Clay Conrad, wrote the book on jury nullification. Literally.
Clay's taking a little time off; I expect him to join in soon, but until then there's always his book:
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