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Recent Blog Posts
Us v. Them
By Troy McKinney, a lawyer's lawyer (in fact, my lawyer), a few of the differences between prosecutors and defenders:
They take away people's lives.We give people their lives back.They break up familles.We help families stay together.They cause and maximize pain.We prevent or minimize pain.They judge.We forgive.Their solutions are usually destructive.Our solutions are usually constructive.They cause kids to visit parents in prison.We prefer that kids and parents visit at home.They hear a story and look for the worst in people.We hear a story and look for the best in people.And, of course, the #1 difference (even though it is last here):They prosecute the innocent.We defend the innocent.
Lucky Stars — an Anti-Whine.
Scott Greenfield at Simple Justice informs us that, in the People's Democratic Republic of New York, there is no right to expunction (only he calls it "expungement," which, according to my OED, is "rare" - not that there's anything wrong with that). So I presume that if you get arrested for something in New York, your friends, neighbors, employers, landlords, and any other busybodies can find out about it forever, even if the cops screwed up, even if you are acquitted, even if there was no probable cause. That hardly seems fair.
Scott's post got me thinking about some of the ways the criminal "justice" system is better in Texas. Sure, we have issues with our appellate courts - they think every court east of the Appalachian Trail is loaded with namby-pamby liberal judges, and as a consequence refuse to consider any authority from any of those courts (including the Supreme Court). And sure, all of our judges (trial and appellate) are elected in partisan elections in which party affiliation is a greater factor than fairness, intelligence, or wisdom. And sure, PD's offices are nearly nonexistent in the state.image by Abu Badali
Butterfly Knives
How many legs does a dog have, if you call a tail a leg?
"Switchblade knife" is defined by section 46.01 of the Texas Penal Code as "any knife that has a blade that folds, closes, or retracts into the handle or sheath, and that: (A) opens automatically by pressure applied to a button or other device located on the handle; or (B) opens or releases a blade from the handle or sheath by the force of gravity or by the application of centrifugal force."
The consensus among criminal-defense lawyers was that a butterfly knife opens by the application of centrifugal force. There are two Texas centrifugal-force knife cases, both from Houston's First Court of Appeals and both "unpublished" opinions. The older of the two, Smith v. State, No. 01-87-830-CR, concerned a butterfly knife; according to the court, "Ample testimony of the knife's functioning revealed that the knife could open by centrifugal force after being unlocked." There was no mention of any testimony to the contrary.
Two More Blawgs for the Blawgroll
I've added Stephen Gustitis's blawg, The Defense Perspective, to my blawgroll. Stephen is an excellent defender in Bryan/College Station, Texas; I know him from the TCDLA Capital Resource Group email discussion group.
I've also added Robert Guest's blawg, I Was the State.
Today both Stephen and Robert commented on University of Florida research suggesting that tougher DWI laws have little or no deterrent effect on drunk driving or traffic fatalities.
Check 'em out.
More HCCLA Merchandise
I posted here about the "VI - The Amendment" stickers I designed for HCCLA:
Scott Henson of Grits for Breakfast saw that post (probably via Luke Gilman's post) and commented that he would be interested in "IV - The Amendment" t-shirts.
So I created one:
(Buy them here.)
I emailed Scott the link, and he beat me to the blog posting about them.
IV stickers are also available:
Support your favorite amendment... and the Harris County Criminal Lawyers' Association. Email sales(at)HCCLA.org
Don't Use the Government to Raise Your Kids
A guy called me the other day wanting me to represent his 17-year-old daughter "Shelly" in a theft case. Shelly had stolen some money from her aunt (the guy's sister). She had been stealing stuff for some time, but had never been charged. After the latest incident the family had made a police report, causing criminal charges (misdemeanor theft) to be filed against the child.
I had defended other members of the family successfully. The guy wanted me to represent the daughter "and get her deferred adjudication probation."
I explained to him that deferred adjudication would not be a win in such a case; that a trained monkey could get Shelly deferred adjudication; that anything other than a dismissal or acquittal would remain on her criminal record forever, affecting her ability to get jobs, rent apartments, and otherwise function as a productive member of society; and that if hired to represent her I would do everything I could to beat her case, including discrediting the family members who made the police report. I declined to represent her on any other terms, and he declined to hire me on those.
Definition: Ex Parte
Ex parte refers to contact between a party to litigation (including the party's counsel) and the court without notice to the other parties to the litigation. In Texas, Ex parte can act as an adjective, an adverb, and a verb depending on the context:
Adjective: "Prosecutors have ex parte communications with judges all the time."Adverb: "Prosecutors discuss cases with judges ex parte all the time."Verb: "Prosecutors ex parte judges all the time."
Ex parte communications are generally improper under court rules, judicial ethics, and legal ethics. One notable exception is when the accused in a criminal case has to ask the judge to approve something that is none of the State's business - for example, court payment to a defense expert under Ake v. Oklahoma.
Technorati Tags: law, definitions
Your Tax Dollars at Work
From the "don't they have anything better to do?" file:
A crook calls up a couple of friends. "I got a lick," he says. "There's this cocaine dealer. I know where he stays. Help me jack him." The friends agree - where's the harm in jacking a dealer? But there is no dealer. The crook is a government informant, and he's prepared to swear that the plan was to rob the dealer of more than 10 kilos of cocaine (recordings of conversations between the players are ambiguous) and sell it. Out of thin air he has just created a federal cocaine distribution conspiracy for which his two "friends" are going to go down hard.
You're paying the informant for this work. You're also paying the cops who run him, and the prosecutors who will prosecute the accused, and the judges who will preside over their cases, as well as myriad other participants in the criminal "justice" system. If they don't have money to hire lawyers, you're paying their public defenders.
Top 11 Criminal Law Blogs
From Jamie Spencer's Austin Criminal Defense Lawyer blog, here are The Top 11 Criminal Defense Blogs.
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