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Recent Blog Posts
The Fourteenth Amendment Right to Sex Toys
The Fifth Circuit Court of Appeals has recognized Texans' Fourteenth Amendment right to use (and therefore to buy) dildos:
Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct. The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.
As one who thinks that the word "moral" belongs nowhere near the words "the State", I have to say, "bravo!"
National Politics
Other blawgs aspire to be apolitical.
Not Defending People.
Everything we do is about politics - the way groups make decisions. There is nothing more political than trying to convince twelve jurors that we have the right side of a dispute. Seen up close, trial lawyering is pure politics.
On a slightly larger scale, we deal with the politics of the elected officials we deal with. In Texas, both judges and district attorneys are elected in partisan elections; criminal-defense lawyers must consider how partisan politics might play into judges' decisions, as well as prosecutors'.
On an even larger scale, national politics affect local politics. An extreme example is barreling down on us in November: the Democratic Party has a full slate of judges running against Republican incumbents in the criminal courts. Voters don't generally know one judge from another. If the Democratic Party wins in Harris County, then the incumbent judges are out; if the Republican Party wins in Harris County, then the incumbents (along with the Republican nominee for the one bench that's coming open and for the office of District Attorney) are back in.
Happy Anniversary Friends
Scott Greenfield's Simple Justice blog just celebrated its one-year anniversary. Anne Reed's Deliberations celebrated its anniversary on Saturday.
I had a blog back in 2004-2005, when the blawgosphere was young. I posted 17 times between August 2004 and June 2005. Then I quit, figuring that this "blogging" thing would never catch on.
When I resumed blogging in March of 2007, Anne and Scott both seemed like old-timers. I never would have thought that they had been at it for less than six weeks. (Of course, they're both still blawgosphere virgins, compared to CrimLaw's Ken Lammers, who's been blogging since 1973.)
Simple Justice (an ironic title - we're generally scrambling to avoid someone else's idea of justice) and Deliberations, along with Jamie Spencer's Austin Criminal Defense Lawyer blog, gave Defending People some of its first link love. This wasn't because I asked for it but because I linked to their interesting posts.
“Just” a DWI Jury Trial?
Scott's condescending attitude toward DWI trials had me thinking this week:
Hey, after I get out of my DWI trial I should maybe write something about the importance of DWI trials.
So here I am on the other side of another DWI trial.
DWI cases aren't beneath the dignity of any criminal-defense lawyer in Texas that I know of.
Sure, they are "not murders or conspiracies", but in Texas (which is where people naturally go to find trial lawyers) the defense lawyers who try murders and conspiracies are also lawyers who try DWIs.
In Texas DWI is a jailable offense (up to 180 days) and a DWI trial is a real jury trial (unlike my 30-minute minor-in-possession trial last Friday; that was not what I would call a real jury trial).
Now, granted, we're only picking six jurors out of a pool of 24 (rather than the 12 out of 60 that is par for the felony course). And, granted, the client's not going to go to prison if things go wrong. And, granted, the DA's office isn't throwing its most experienced prosecutors at the misdemeanor DWI cases - more likely, they're using it as a training ground for the youngest prosecutors.
Me and Buford on the Teevee
More public access TV stuff: Drugs, Crime and Politics with retired South Texas College of Law prof Buford Terrell.
Picked a Jury Today
DWI - total refusal with no accident, but driving facts include alleged flight from the police (a felony, with which he would undoubtedly have been charged if the cop were not making it up).
Unusual jury demographics for Harris County:
A 29-year-old hispanic male waste company driver;
A 50-year-old black female loan closing manager;
A 63-year-old retired white lady from Brooklyn;
A 42-year-old black female teacher's aide;
A 28-year-old black club manager; and
A 49-year-old black FedEx driver.
If the State can convince these six that my client is guilty of DWI, he might just be.
Chron is Clueless Again
The Houston Chronicle editorial board has endorsed Pat Lykos for DA. The column endorsing her regurgitates her campaign soundbites - basically, she sold herself to them. There's a lot of empty air in Lykos's campaign promises. In fact, they are almost 100% empty air. But the Chronicle editorial board doesn't understand the criminal "justice" system any better than the voters, so Lykos's empty promises sound good. With this endorsement, the blind are leading the blind.
Virtually everybody who actually practices law down at the Harris County Criminal Justice Center, however, agrees that Lykos is not the best person for the job. AHCL and I might disagree on whether she is the worst, or only the second- or third-worst of the four-candidate Republican field, but we - and the vast majority of defense lawyers, prosecutors, and judges we know - agree that Jim Leitner, at least, is a better choice for DA than Pat Lykos.
More Public Information from HCSO
The Harris County Sheriff's Office responded to my email request for "all documents related to the Harris County Sheriff's Office's email retention policy, including emails and other correspondence discussing the policy and changes to the policy [for the time period from January 9, 2008, through January 18, 2008]."
Here are the 24 pages of email they sent me.
The oldest emails are from detectives, with complaints like "this policy change is killing us in Detective unit... I had numerous files that are needed in cases that are currently being worked that were saved in those files" and "I have things I was working on that are gone and I cannot get back or track on what was done."
The newer emails describe how to add personal folders to an email account ("contents of the folder are not deleted by the Department"). The most recent discuss how to retrieve "deleted" email, which is apparently not deleted to Chuck Rosenthal's standards, but rather preserved on tape.
Take Two Aspirin But...
If it is before noon and a weekday, I am probably chugging along at either the Harris County Criminal "Justice" Center or the Houston federal courthouse. If I'm not in trial, I'm taking notes on a file, or negotiating with a prosecutor, or investigating, or filing stuff.
If you call me, I will probably answer the phone. Because I never know when it's an emergency, and when I'm doing most of those things I can still answer my phone.
But I'll be preoccupied, in the zone, focused, and intense. In other words, I will seem unfriendly. If it's not an emergency (that is, something that you need me to do something about before noon) I'll probably ask that you call me back after noon.
So, unless it's an emergency, please don't call me in the morning.
Let the Government Clean Up its own Mess
Scott Greenfield has an interesting pair of recent posts: The Conflicted World of Assigned Counsel and today's Rebirth of the Megatrial.
In the first, Scott argues that New York's appointed counsel system was not intended to, and should not, provide livings for criminal-defense lawyers:
[T]here should never have been an 18b bar to begin with. It was my thought that no lawyer should be permitted to do more than 10 assigned cases a year. That way, no one would ever be able to build an entire practice on assigned counsel work alone. They would be required to find retained clients or else a new line of work. No one should live solely off of assigned work, and if they wanted to represent indigents that badly, they should get a job with Legal Aid.
In the second, Scott brings word of two related massive indictments: a 62-defendant federal indictment out of EDNY and a 26-defendant state indictment out of Queens County. That should be joyous word for the criminal defense bar - "massive indictments inexorably lead to massive trials", for which 87 (New York math?) alleged members and friends of the alleged Gambino crime family each will need competent counsel. But
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