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Recent Blog Posts
Something We Learned at City Hall
Yesterday when HCCLA went to Houston's City Hall, we learned (because the Mayor told us) that the City of Houston is working on separating the crime lab from the Houston Police Department.
This was a surprise to me; it's excellent news.
The HPD “Don't Talk to Defense Lawyers” Memo
Texas's highest criminal court, the Court of Criminal Appeals, has held, in Stearnes v. Clinton, that a rule barring defense counsel from talking to some witnesses without the prosecutor's presence "is not only in conflict with principles of fair play, but in direct conflict with defense counsel's responsibility to seek out and interview potential witnesses."
Murray Newman got the scoop: a memorandum originating from the HPD Chief's Command/Legal Services:
Effective immediately, officers shall have no discussion with criminal defense attorneys regarding any pending criminal case without first obtaining express permission from the federal prosecutor, assistant district attorney or municipal prosecutor assigned to the case. This circular applies to criminal cases pending in any federal, state, county, or municipal court and shall include the prosecution of traffic citations.
To An Anonymous Document Review
It's not that he loves his job:
I could have been a contender instead of what I am, a document review attorney. (Twitter.)
Nor that he enjoys it:
What's new in the contract attorney world? I hope you guys/ladies having a better time of it than me. (Twitter.)
It's not just that it's fulfilling:
The only reward for being the fastest doc reviewer is quicker unemployment for all involved. (Twitter.)
Nor that quality is prized over quantity:
Project in Hou requiring 400 docs an hr be reviewed. Guess not interested in quality. #stoptheinsanity (Twitter-those hashtags say it all.)
He has very little good to say about his work.
Thanks, Snake
"Watch this, Mark. I'm going to lie to the judge just to show you that I can."
That's not exactly what she said.
This morning The Snake was seeking a delay of the trial (set next Monday) of a case in which she's prosecuting a client of mine. This was her second motion for a continuance, but it didn't even come close to complying with the law for a first motion for continuance, much less the stricter requirements for the State's second motion for continuance. The court could be expected to grant the continuance as a matter of course, but my client wants his day in court, so I was bound to object.
It's not the stuff of high drama, I know. Lawyers approach judge, prosecutor wants delay, defense objects, judge grants delay. It happens every day.
The Snake had claimed in her motion that witnesses had travel plans, but hadn't named the witnesses. I pointed this out to the judge, and the judge asked The Snake why she needed her continuance. The Snake changed tacks and blamed me-by requesting notice of other acts that she intends to introduce at trial, I had somehow forced her to ask for a continuance.
Blog à Clef, for Now.
I am sorely tempted today to write about The Clown and The Snake-the incompetent, biased judge and the lying prosecutor-and use their names, creating a permanent googleable record.
There would be good in it. The voters should know about The Clown, and if he knew that his hijinks might be published, it's not unimaginable that he would back off a bit. As for naming The Snake, I know there's no changing her-her malevolent dishonesty is the habit of more than 20 years-but it would just feel good, and that's worth something. Besides, one way or another the sunlight might do some disinfecting.
In the larger picture, prosecutors and judges are public servants, and should enjoy no impunity at all. There are some who have for decades broken the rules in the Harris County Courthouse, knowing that the mainstream media see tales of cheating in the courthouse as inside baseball, and would never bother with a story about a deceitful prosecutor or a judge prejudiced against the defense. Lying prosecutors like The Snake (I haven't met many, but there are some) rise to high levels in the District Attorney's Office; partisan judges-"prosecutors in black robes"-are reelected term after term by voters who don't give any thought to the criminal courthouse until they are invited down there as jurors or defendants.
The Debriefing
After twelve days of trial and deliberation, the jury found my client guilty of tampering with physical evidence.
Now, ordinarily I figure that going and talking to a jury after a trial is a good way to get lied to, but here we had what I felt was a full and fair exchange of views. And I was left with the definite impression that I had simply failed to communicate with this jury.
The State had to prove that my client had altered or destroyed drugs with the intent to impair their availability as evidence in a pending investigation (the State also had to prove that he knew an investigation was pending, but I think that's subsumed by the specific intent-you can't intend to impair evidence's availability in a pending investigation unless you know that investigation is pending). It wasn't enough to show that my client was negligent or reckless with the drugs, nor that he intended to use the drugs.
Intent is more than negligence or recklessness or even knowledge.A person acts with intent with respect to a result of his conduct when he has the conscious objective or desire to cause the result. So the State had to prove (I don't quibble with the other elements here, though our theory at trial was that my client hadn't altered or destroyed drugs at all) that my client had the conscious objective or desire to impair the drugs' availability as evidence in a pending investigation.
Implicit Bias and Common Sense
But I also recognize that my life experience is different from that of most African-Americans. And that experience allows me both the luxury of seeing people without the lens of race, but also (sometimes) to fail to imagine how people of other backgrounds might interpret my words.
That's Kathleen Parker, in her column published in Saturday's Chronicle.
It sometimes amazes me when educated white people claim with straight faces that they see things without the lens of race, as though "white" signifies the lack of race. Is it possible that Parker sees people without the lens of race? No way, nohow. Well, not unless she has Williams Syndrome.
Racial bias is one of the things that makes us all alike. There's plenty of research on the topic of "implicit bias." It's normal, natural-part of our genetic programming, which drives us to favor those who are more like us (and therefore more likely carriers of our genes) over others. Does that mean we surrender to the impulse, treating other human beings worse because they are unlike us? Of course not. We take into account the perfectly natural inclination, and overrule it.
Fighting Back Against Common Sense
"Common sense" has nothing to do with it. The words do not appear in a Texas criminal jury charge. The existence of jury trials is not common sense. The presumption of innocence is not common sense. Requiring proof beyond a reasonable doubt is not common sense.
If any of these concepts were common sense, everyone would have adopted them.
Every civilized country on Earth would have had criminal jury trials for the last 200 years.
We would require proof beyond a reasonable doubt in disciplining our children.
We would, in our everyday lives, presume people to be innocent of any bad act or bad intent against us.
They don't, we don't, and we don't.This is why prosecutors love "common sense": because we don't, in our ordinary lives, presume innocence and require proof beyond a reasonable doubt. The appeal to common sense is a call to use everyday rules in a highly technical context. As Scott Greenfield points out:
Happy Revolution Day
Read the Declaration of Independence (I republish it here every year).
The founders were not always patriots. They began as traitors, risking everything to sever their ties with the government that was supposed to keep them safe but that broke that promise and stole their freedom.
America didn't become independent in the first week of July of 1776. The founders didn't, with a stroke of the pen, create a free nation; rather, they formalized a revolution, and pledged to that revolution their lives, their fortunes, and their sacred honor. It took seven more years for the states to become independent.
Thomas Jefferson knew that the course of governments is toward greater authority and tyranny. That governments become destructive to life, liberty and the pursuit of happiness was a fact acknowledged in the Declaration without fanfare. Whenever-not "if" or even "when"-it happens,
The Declaration of Independence
When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. –Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.
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