Austin Criminal Defense Lawyer

The Apple Doesn't Fall Far

jamie@austindefense.com (Jamie Spencer) — Thu, 19 Nov 2009 10:33:55 -0600

One of Sam’s teachers told me that he was the class clown. (When my wife was told the same thing at a parent-teacher conference, she said it must be genetic.)

Sounded possibly like a bad review of his behavior, but the teacher assured me that it wasn’t, that he just says things that make even his teachers laugh. And apparently at a much greater rate than most 3 year olds.

He also knows how to play straight man for his twin brother. Both of them at times like to speak in lists. Here’s a recent example:

Sam: I love Mommy, I love Daddy, I love Sammy, I love Jack.

(I looked over at his brother, to see if had anything to add. After a short pause…)

Jack: I love breakfast tacos.

BR: International Day Of Tolerance Edition

jamie@austindefense.com (Jamie Spencer) — Thu, 19 Nov 2009 08:49:18 -0600

I’ve been busy burying myself in the finer details of achieving a one word verdict, and wholly neglected to point folks to this week’s edition of Blawg Review.

We Could Have Stayed There For Another Week

jamie@austindefense.com (Jamie Spencer) — Sat, 14 Nov 2009 19:15:31 -0600

A scene from “Marijuana Inc.: Inside America’s Pot Industry” included a mini-tour of Oaksterdam University, which promotes itself as the first cannabis college, providing entrepreneurs with the “highest quality training” to enter California’s burgeoning marijuana dispensary business. On several walls were large red signs with yellow letters proclaiming:

Jurors Can Not Be Punished For Their Verdicts

An advertisement for jury nullification, albeit when considering the location, most likely preaching to the choir, or viewed more cynically, meant to assuage students’ doubts about the likelihood of a successful federal prosecution.

Are jurors likely to nullify? To insist on voting “not guilty” when they believe the state or federal government has proven its case beyond a reasonable doubt, but instead to base their verdict on personal, moral, ethical objections to convicting or imprisoning marijuana users and their suppliers. It’s a nice thought.

But see this week’s opinion in U.S. v. Villar, courtesy of the First Circuit Court of Appeals. Merely hours after the appellant was convicted of bank robbery, the defense lawyer received the following email, from a juror who was not convinced of the government’s case apologizing for the guilty verdict:

We finally decided to not prolong that young man’s hope any longer. We could have stayed there for another week. Their minds were made up from the first day. Here’s one example, A man said “I guess we’re profiling but they cause all the trouble.”

[Full contents of email available in the first comment to this post. Also, it’s an interesting opinion. The 606(b) vs. Fourteenth Amendment issues could make for several blog posts, and the court ends up reversing, but I will return to my intended topic: weak minded jurors.]

From the recitation of facts, seems that identity was the sole issue at trial, and now a juror comes forward claiming that racial bias influenced at least some of the jurors. But why did he cave in and vote guilty?

You know if I thought he would have gotten a different kind of jury the next time I think [I] would have kept them there.

These people are the salt of the earth and there is no gray in their lives. I really hope they never get into the scales of blind justice because she isn’t.

You thought he was factually innocent, or you thought he might have done it but weren’t convinced beyond a reasonable doubt; either way you “wanted” to vote not guilty. But you decided that 9 out of 12 (read the full email, there were 3 holdouts) was good enough to send him to prison for years?

It’s the same rule as “crying in baseball”; there’s no "apologizing for a guilty verdict" after the fact. If you feel the need to explain why you did the wrong thing, then it was the wrong thing, end of story. Does it really take courage to stick to your guns?

Not A Chance In H - E - Double Hockey Sticks

jamie@austindefense.com (Jamie Spencer) — Sat, 14 Nov 2009 00:34:52 -0600

Houston criminal defense lawyer Mark Bennett makes sure he follows through on those pesky little certificates of service, because he doesn’t want to be accused of a criminal offense, say, tampering with a governmental record. So when a prosecutor filed a motion, and swore s/he had served Mark but hadn’t, he asked:

Are you laboring under the delusive belief that [the D.A.] won’t file charges against you?

I'm pretty sure the prosecutor was laboring under the 100% correct belief that charges won’t be filed.

Veterans In Prison For Non-Violent Drug Offenses

jamie@austindefense.com (Jamie Spencer) — Wed, 11 Nov 2009 22:44:16 -0600

The Drug Policy Alliance released a paper last week, “Healing a Broken System: Veterans Battling Addiction and Incarceration”. One of several recommendations:

State and federal governments must modify sentencing statutes and improve court ordered drug diversion programs to better treat – rather than criminalize and incarcerate – veterans who commit non-violent drug related crimes.

Skip for this post my regular diatribe on how this is a perfect prescription for all human beings, military service notwithstanding. How bad could it be? Not many GIs are locked up for drug offenses, since certainly prosecutors and judges take their service into consideration, right?

46% of veterans in federal prison are incarcerated for non violent drug offenses(NVDO)
15% of vets in state prison, NVDO
61% of all former soldiers in prisons diagnosed as substance abusers under DSM-4
Somewhere between 1/4th(state) to 1/5th(federal) vets in prison faced combat

OK. So there are lies, damned lies and statistics; maybe I’m trying to fool you. I asked how many vets are locked up, then simply gave you percentages of the ones that are locked up for dope related charges. Didn’t really answer the question. For example, 46% of not very many incarcerated veterans is about half of a very low starting number.

Do you know 14 people who served? Probably. How about 140, know that many? Unless you’re currently living on base, it’s unlikely. As of 2004, which seems to be the latest for which statistics are available, there were 140,000 veterans in prison. One hundred and forty thousand total. Not all, of course, for controlled substances, but it’s a substantial portion.

If a society is rightly judged by how it treats the least among them, isn’t there some corollary for veterans? Let’s find something other than incarceration for our former military members who possess or use drugs. And while we’re at it, we might eventually end up applying the same rule for those people whose “freedoms” they fought for in the first place.

[Hat Tip: Matt Kelley at Change.org]

If You Press A Stone With Your Finger

jamie@austindefense.com (Jamie Spencer) — Tue, 10 Nov 2009 03:19:49 -0600

United States v. Ortega Reyna, 148 F.3d 540 (5th Circuit 1998):

After examining each piece of evidence from that perspective, we conclude that, like Newton's Third Law, for every inference of guilt that may be drawn from the evidence, there is an equal and opposite benign inference to be drawn.

A beautiful turn of phrase (but see my other concerns), Newton’s 3rd Law of Motion, colloquially stated as “For every action there is an equal and opposite reaction”.

Jesus Ortega Reyna appealed his 130 month sentence for possession with intent to distribute heroin and amphetamines, in violation of 21 U.S.C. § 841(a)(1). His sole point of appeal: insufficiency of the evidence.

From the evidence at trial, Ortega was – at best – a mule, the lowest level courier hired by a drug lord or kingpin to take the risk of transporting dope from place A to place B. The only issue at trial was whether or not the Government could prove their best case beyond a reasonable doubt: did Ortega know the drugs were hidden in the tires of a borrowed vehicle.

If you were a heartless bastard, you could compile a list of reasons that various U.S. attorneys have used to argue to juries and appellate courts that justify conclusions of the guilty mind: driving too fast, driving too slow; avoiding eye contact, making eye contact; nervousness, lack of nervousness… You could laugh and laugh at the contradictions between (and sometimes among) cases, but you’d be callous and unChristian because these fictions are responsible for locking innocent people up in a box for enormous amounts of time.

This time - well, if eleven years ago is “this time” - the Fifth Circuit saw it differently (what can I say? I’m researching old case law; the new stuff is no good for me). Who knows why, perhaps when reciting the buzz words for a reversed for insufficiency appeal “we agree that no reasonable jury could have concluded beyond a reasonable doubt that Ortega's possession of the drugs was knowing”, they gave us a hint, “After a two-day trial--and three days of deliberation--a jury found Ortega guilty of both counts.”

Shouldn’t there be a rule that in a one issue case (did he know the dope was there?) that if the jury deliberates for a longer time than the presentation of evidence, it’s prima facie not BRD on appeal? Pretty unusual for an appellate decision to mention the time of deliberations. It’s not supposed to be a consideration, but it seems like they felt a little bad about it. This wasn’t a white collar fraud case with tens of thousands of documents to sort through; either the government proved the defendant knew the controlled substances were in his possession or they didn’t.

The decision, which goes out of its way to highlight the innocent explanations for all the evidence, is well worth the read. And, here’s the tip for mule cases:

As a general rule, a jury may infer knowledge of the presence of drugs from the exercise of control of a vehicle containing such contraband. When the drugs are secreted in hidden compartments, however, "this Court has normally required additional 'circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge.' “(quoting United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir.1990))

This requirement stems from our recognition that, in hidden compartment cases, there "is at least a fair assumption that a third party might have concealed the controlled substances in the vehicle with the intent to use the unwitting defendant as the carrier in a smuggling enterprise." This assumption is heightened when, as here, the vehicle is a "loaner" or has otherwise been in the possession of the suspect for only a short time.

[Title of post from the text of Principia, “If you press a stone with your finger, the finger is also pressed by the stone”.]

That's Not Me In The Stripes

jamie@austindefense.com (Jamie Spencer) — Mon, 09 Nov 2009 10:34:35 -0600

Paintings and sketchings from a Travis County prosecutor whose blog says she wants to work as a courtroom artist when she retires. Primarily not courthouse related stuff, but there's plenty of that in there too.

Lots of good work: for example, in the second sketch, the person on the left could be a prosecutor or defense lawyer that I don’t recognize from behind, but that’s unmistakably Judge Kocurek in the middle.

[H/T: D.A. Confidential “Not Your Usual Sketch Artist”]

Conscious Mendacity

jamie@austindefense.com (Jamie Spencer) — Sun, 08 Nov 2009 11:19:15 -0600

From my recently kindled copy of Eating the Dinosaur, Chuck Klosterman is interviewing Errol Morris, the documentary filmmaker, on the subject of interviewing people:

What’s more interesting to you: someone who lies consciously, someone who lies unconsciously, or someone who tells a relatively mundane version of the truth?

Here’s a snippet of Morris’ answer:

…I read a piece about modern forms of lie detection – methods that go beyond the polygraph. The writer’s idea was that we can actually record activity inside the brain that proves who is or who isn’t lying.

It suggests that the brain is some kind of ‘reality recorder’ and that we know when we are lying. But I think those lies represent a very small piece of the pie.

I think the larger sects of liars are people who think they are telling the truth, but who really have no idea what the truth is…

Let’s say you’re voir diring on punishment in a felony sexual assault case. Assume that, despite the proscription against “talking about the specifics of the case”, it’s pretty obvious to everyone by now that this ain’t no statutory rape case, and that if the defendant is guilty, he’s guilty of sexually assaulting a young child.

You’re asking the potential jurors about whether they could consider probation. All yes and nos fall into 4 groups (I think):

Group A: says yes, although they know they would never give probation (traditional liars)
Group B: says yes, but they just don’t know they would never give probation in this type of case (lying to themselves)
Group C: says yes, and in some cases they would consider probation (honest)
Group D: says no, means no (honest)

Of course, Group A includes all people who have figured out they won’t be on the jury if they say “no”, and who would prefer to sentence your client to prison right now before the evidence even begins. Some want to hear the evidence, then sentence.

All other things being equal*, who’s a better guilt/innocence juror, the one that says yes or no? Group B isn’t a whole lot better than Group A, except perhaps for compromise verdicts. Group C includes your best jurors, but distinguishing them from Groups A & B (besides asking better questions, see below) is uncertain at best.

Group D seem like your worst jurors. And your client is scared to death of all of them. But couldn’t some be better guilt/innocence jurors than the combined group of A, B & C? If all you knew about them was this yes/no answer, they’d almost certainly be better than Group A alone.

Conventional wisdom is to strike all jurors who say they can't follow the law regarding low end of the punishment range. They are double whammies, bad for G/I, bad for punishment. Is there room here for an exception? I don’t know the answer to this question, I’m just asking.

[*All other things being equal, which they never are. The hypothetical demands that you ignore there are other factors to color your good/bad juror decisions, or you’re not doing a very good job in voir dire. Also, “Would you consider…” is a poor way to phrase the question to the venire in the first place. It’s just easier to frame my hypo that way; you can change the example, and still end up with the same quandary: for guilt/innocence purposes, is a Group B juror that lies to himself, or to the lawyer, about being able to sentence on the low end of the punishment range worse overall than a juror who is honest about not being able to do so? And how big a percentage of the overall population is Group C?]

Post Hoc Ergo Propter Hoc

jamie@austindefense.com (Jamie Spencer) — Sat, 07 Nov 2009 04:24:36 -0600

From the San Francisco Chronicle article “Report: Pot use, arrests rising in California”:

Marijuana arrests in California are increasing faster than the nationwide rate, and African Americans are being booked for pot-related crimes much more often than whites, a new report says.

But despite the rise in arrests and in the seizure of marijuana plants, use of pot in California has increased slightly, said the report, part of a nationwide study released Thursday by a Virginia researcher.

Isn’t arresting folks for marijuana possession supposed to discourage use?

In both California and the United States as a whole, "we keep arresting more and more people, but it's not having a deterrent effect," said Jon Gettman, an adjunct assistant professor of criminal justice at Shenandoah University in Winchester, Va.

Clearly no deterrent effect. But let’s use some drug warrior logic here. Gateway theory proponents like to argue that since most heroin users started their controlled substance journey with marijuana, that marijuana leads (inevitably?) to harder drugs. After all, according to them, correlation proves causation.

But wait a minute, new wrinkle. So an increase of arrests precedes an increase in usage? If they’re going to be consistent, the drug warriors need to start arguing that the arrests are causing higher use rates.

The Bad News Is... You're The One Out Of A Hundred

jamie@austindefense.com (Jamie Spencer) — Fri, 06 Nov 2009 11:15:53 -0600

From an email several months back:

Writing on behalf of my son. We are completely frustrated with our attorney choice.

They told us 99% it would be dismissed in our first meeting. Court date arrives and then a new attorney starts on the case. There was no hope it would be dismissed.

The email continues to talk about the parent’s frustration about surcharges, and driver’s license suspension issues that they were never advised about. Which means, of course, that by the time the email comes to me, the son has already plead guilty.

I called and talked to them, and wasn’t a lot of help, except I asked a few questions and was able to at least explain the law, and the situation they were in post plea and conviction. There are quite a few collateral consequences for DWI convictions in Texas, and a halfway decent lawyer will at least explain those to someone so they, the client, can make an informed decision about whether to try or plead the case.

But 99%? You fell for that one? A lawyer tells you there’s a ninety-nine percent chance of getting a DWI dismissed without doing any work on the case? Hasn’t read the police report, hasn’t seen the video…

But I guess if you believe that, you’ll accept the lawyer’s later explanation: hey, I didn’t say 100%. The 99%, that’s all my other clients.

Contempt of Bailiff

jamie@austindefense.com (Jamie Spencer) — Wed, 04 Nov 2009 20:05:41 -0600

Anyone searching for a niche blog topic could do well blogging about contempt of court. Stories like these are getting more and more common (even if this one is beyond the pale):

According to the Sheriff's Office, attorney Henry Ferro was sitting in an area designated for inmates when bailiff Anthony Riggins asked him to move. Ferro stood up and moved to another designated area for inmates. When he was asked to move again, he allegedly uttered a curse word and left the courtroom. The judge was not present during this exchange.

According to other bailiffs and attorneys who were present at the time, Riggins followed Ferro out of the courtroom, where he apparently told the lawyer that he "can't disrespect the court like that." The bailiff then handcuffed the attorney.

Can’t disrespect the court? The courtroom maybe? Naaah. Just a simple case of... I’ve got a gun, and you can’t dis me!

Everything's Bigger In Texas

jamie@austindefense.com (Jamie Spencer) — Fri, 23 Oct 2009 20:50:21 -0600

Criminal lawyer Thomas Gallagher writes about a case, Minnesota v. Peck, decided by his state’s Supreme Court which overruled a trial court’s determination that including the bong water as a “mixture” used to calculate the weight of methamphetamine possessed by a defendant would be “unjust”.

The difference in the weight of the meth alone vs. the weight including the bong water (approximately 37 grams) raised the offense to a first degree drug felony punishable by a maximum of 30 years, and if I have my Minnesota law right, and I very well might not, a minimum sentence of 87 months, or 7 years and 3 months. Assume the defendant would be probation eligible otherwise, and you Yankee lawyers can write in to tell me I’m wrong.

Let’s also ignore why there would be meth residue in a bong; the opinion doesn’t make it clear, probably because there is no good reason for it. Of course, that doesn’t stop the arresting officer from hazarding a guess at the hearing:

When asked why a narcotics user would keep bong water, Rauenhorst replied, “for future use . . . either drinking it or shooting it in the veins.”

Yeah, right. And college freshman leave empty pizza boxes scattered all over their apartment because they plan on doing a science project in the future on the effects of pepperoni stains on cardboard. Dopers make most of their decisions because they are really concerned about what’s going to happen tomorrow. They’re known for making a lot of plans for the future. No chance the defendant just passed out on the couch, leaving the bong on the coffee table while she slept it off, eh officer?

Gallagher’s analysis:

This defeats the legislative purpose of treating larger quantities more harshly. Worse – it makes no sense. It is absurd.

What is a bong? It is a water pipe. A water pipe, such as a bong, can be used to smoke tobacco, marijuana, methamphetamine (as in the Peck case), or anything that can be smoked. Smokers view the water which has been used to filter and cool the smoke as something disgusting, not unlike a used cigarette filter, to be discarded – sooner or later. The used water is not commonly used for any other purpose.

He notes that a user might accidently dissolve one tenth of a gram of meth in twenty six grams of water and end up with a 30 year sentence. I am not impressed. Sounds like those Minnesotan legislators are soft on crime to me. Why just the other day, Austin Defender pointed us to a similar Texas case:

In Ex parte Kinnett, for example, a guy dumped his meth in the toilet. The cops scooped the water out, weighed it, and used the weight of the toilet water as the basis for his prosecution. Since they scooped more than 600 grams of water out of the toilet, that put him over the limit for a 1st degree felony.

The jury gave him 85 years in prison. (Along with a $250,000 fine – more, I suspect than his trailer was worth.) The Texas Court of Criminal Appeals was just fine with that. This is, the Court said, what the legislature intended.

For what it’s worth, the actual amount of meth was 0.0274 grams, for a toilet-water to methamphetamine ratio of 24,197:1.

Drug War logic and reasoning is faulty everywhere, but the sentences are bigger in Texas.

The Doctrine Of "Necessary Englishness"

jamie@austindefense.com (Jamie Spencer) — Thu, 22 Oct 2009 01:33:06 -0600

I predicted some humorous tidbits would come from D.A. Confidential, and I’ll predict now that this post may be hard for DAC to top. I’m going to forgo substantive comments, merely hinting at the subject matter, hopefully forcing you to click through and actually read the original. (You know how new bloggers get obsessed with watching their stats.)

A total guess here on my part: the defense lawyer simply handed this motion to the prosecutor in court as a joke – it’s not file stamped after all. The response is brilliant.

Thrashing Pecans

jamie@austindefense.com (Jamie Spencer) — Wed, 21 Oct 2009 02:29:45 -0600

“You don’t get a figure like mine by eating salads for lunch,” I often say, when it is either necessary or, more likely, merely personally amusing to point out that I’m no longer the fittest of the fit. But I still have a few friends left from childhood that remember me as a scrawny kid, constantly on the move, never staying still, always running, bicycling, shooting hoops, not per se “exercising” in the 40-something meaning of the word, on treadmills or ellipticals, but let’s say… “very active”. (And I wonder where my children get their energy from.)

One of many “activities” was climbing trees, for example, the State Tree of Texas, the great Pecan. Of course, any tree is good for scaling when you’re eight to twelve years old, but to bastardize the famous bank robber Willie Sutton’s misquote: Why did you climb the pecan tree? Because that’s where the pecans are.

In fact, there were pecan trees all over my neighborhood, both around my home, school and church. The statute of limitations has now passed – by a few decades or so – so it’s probably safe for me to admit that I was a juvenile delinquent. And I hung out with the wrong crowd. That’s right, my friends and I would not only climb pecan trees, but we would even “cause the pecans to fall” from the branches, scramble down, crack and eat to our hearts delight.

From Section 3101.010 of the Texas Government Code:

§ 3101.010. Thrashing Pecans

(a) A person commits an offense if the person causes pecans to fall from a pecan tree by any means, including by thrashing, unless the tree is located on:

(1) land owned by the person causing the pecans to fall;

(2) privately owned land, and the person causing the pecans to fall has the written consent of the owner, lessee, or authorized agent of the owner or lessee;

(3) land owned by the state or a political subdivision of the state and in the boundaries of a municipality, and the person causing the pecans to fall has written consent from an officer or agent of the agency or political subdivision controlling the land or from the mayor of the municipality; or

(4) land owned by the state or a political subdivision of the state and outside the boundaries of a municipality, and the person causing the pecans to fall has written consent from an officer or agent of the agency or political subdivision controlling the property or from the county judge of the county.

Maybe a ticket, fine only, right? Not so.

(b) An offense under this section is a misdemeanor and on conviction is punishable by:

(1) a fine of not less than $5 or more than $300;

(2) confinement in the county jail for a term not to exceed three months; or

(3) both a fine and confinement.

Moral of the story: when you start having so many criminal laws that some of them are buried in sections numbered beyond the first couple of thousand, and/or not even in the penal code, you might be going to far.

(h/t: austin defender via grits)

Prosecuting Significant Marijuana Traffickers

jamie@austindefense.com (Jamie Spencer) — Tue, 20 Oct 2009 17:30:35 -0600

The Department of Justice sent a memo on Monday to all its prosecutors regarding federal prosecution of marijuana cases in States that have legalized the use of medical marijuana. From the memo:

One timely example underscores the importance of our efforts to reduce and eventually eliminate the prosecution of marijuana offenses: marijuana distribution in the United States remains the single largest source of revenue for the Mexican cartels. Since 90 to 95% of the cost of marijuana is directly attributable to its criminalization, rather than to the plant itself, refusing to prosecute marijuana offenders will deny criminal organizations worldwide a substantial part of their income.

No, no no. I’m kidding, of course. Here’s what it really says:

One timely example underscores the importance of our efforts to prosecute significant marijuana traffickers: marijuana distribution in the United States remains the single largest source of revenue for the Mexican cartels.

Sigh.

D.A. Confidential

jamie@austindefense.com (Jamie Spencer) — Thu, 15 Oct 2009 16:24:00 -0600

A new criminal law blog in Austin has popped up recently, but unlike those I recently posted about, this one comes in the black hat variety. That’s right: it’s written by a prosecutor.

It’s not the first blog offering by a Travis County prosecutor. The Adventures of Steanso has been around longer than almost any other Austin law blog, criminal or otherwise. But as he admitted recently, he “rarely talk(s) about the day to day specifics of (his) job on” the blog. (Also worth noting, he started blogging while he still wore the white hat and worked for defense lawyer Pat Ganne.)

And now we have “D.A. Confidential” whose subtitle promises that all our criminal law needs will be met with news, issues, trivia, and the occasional literary twist. In one of his/her first posts, our anonymous prosecutor tells us:

My original plan was to blog about the secrets that haunt the halls of the D.A.'s office, to reveal the intrigues that torment the unknowing and entertain the cognoscenti, but never leak from the airtight offices.

But then I remembered how much I love my job.

Rumor has it that DAC decided, probably wisely, to seek permission from the top dogs re starting a blog, so some of the juiciest tidbits may still go unpublished, but it’s a promising start. Posts so far include a review of the initial processing of a criminal case at the D.A.’s office, a comment about the faked intoxilyzer records scandal, the author’s types of cases by percentage, book recommendations and some humor.

Blog on DAC. And if there are other prosecutor bloggers out there, in any jurisdictions, I try to keep track of those and add them to my RSS reader, so send me a heads up if you're starting one, and I'll do my best to link back to it.

Code For Vizio TV / DirecTV Tivo Peanut Remote

jamie@austindefense.com (Jamie Spencer) — Mon, 05 Oct 2009 10:55:34 -0600

Press the Mute and the TV Power button simultaneously, for approximately 5 seconds, or until the red light at the top blinks. Type in code 0-1-2-8. Tada!

Note to others: this may not work for you. This code works on my exact TV, with my exact box, and my exact remote. The reason I have put this on my blog is that every time I have to reprogram the damn thing – say, for example, I change the batteries – I go to the computer to look up the code.

Apparently they are about a billion different codes out there for various TV/box/remote setups, and it always takes me forever to come up with mine. So from now on, I will only need to search my blog, not the whole darn series of tubes we know as the internets.

I thought to myself earlier – hey! 128, that’s 2 to the 7th power, like 128 bits, I’ll just memorize it and never need to look it up again. That was followed by the memory of my thinking exactly the same thing the last time it took me twenty or so codes to get to the right one. It doesn’t do any good to remember my mnemonic device after I’ve come up with answer.

My brain does a relatively good job of storing vast amounts of useless information, but this particular tidbit is only useless when I don’t need to remember it. Therefore, it is one hundred times harder to remember it when I am programming the remote.

Any rate, if you got this webpage via google search, you are in the same boat I used to be in. I hope 0128 works for you. Otherwise, keep googling.

Perjury For Filing A Writ Of Habeas Corpus?

jamie@austindefense.com (Jamie Spencer) — Thu, 01 Oct 2009 02:44:50 -0600

Reading between the lines from this KXAN news story, “Man Faces Life In Prison for Perjury”:

A Liberty Hill man faces life in prison for aggravated perjury charges after claiming he was innocent following a plea bargain with the Williamson County District Attorney’s Office.

Prosecutors say Markus Peavy had made false statements in his plea bargain and the writ when claiming he was not guilty of DWI charges. Peavy is two years into a 55-year sentence for a fourth DWI conviction.

The defendant must have signed paperwork and been sworn in to give oral testimony at his plea of guilty two years ago – either “in exchange” for an agreed sentence of fifty-five years, or possibly plead unnegotiated, i.e., threw himself on the mercy of the court (not usually a good idea in Wilco).

At some point in the penitentiary, a jail house lawyer either helps him file or files a writ on his behalf, alleging among other things, that he is innocent. A sworn “this is true and correct” affidavit is signed by the defendant and filed with the writ.

Texas Penal Code Section 37.03, Aggravated Perjury:

(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

(1) is made during or in connection with an official proceeding; and

(2) is material.

(b) An offense under this section is a felony of the third degree.

Putting aside general notions of decency, fair play, common sense, judicious use of taxpayer monies and simply grading for creativity alone…? Williamson County District Attorney John Bradley gets an A+ on this one.

You walk into court, swear under oath that you are guilty, and then later swear in your writ that you are not. Seems to fit the language if not the intent of the statute.

But wait a minute. How are they going to prove which was the lie? Was he lying the first time, when he said he was guilty? Or the second time, when he said he wasn’t?

Doesn’t matter.

Texas Penal Code Section 37.06 Inconsistent Statements:

An information or indictment for perjury under Section 37.02 or aggravated perjury under Section 37.03 that alleges that the declarant has made statements under oath, both of which cannot be true, need not allege which statement is false. At the trial the prosecution need not prove which statement is false.

Of course, they’ve already extracted the 55 out of him without even going to trial the first time around. What’s going on here? I think his trial defense lawyer, Scott Steele, hits it right on the nose:

"Maybe they are trying to make a point not to engage in the procedure if they do a plea bargain,” said Steele.

Aha! The chilling effect. Stack a few 25 to life sentences on top of a few defendant’s plea bargains, and you’ll put the jail house writ writers out of business (and maybe some appellate criminal defense lawyers too).

I wonder how long Christopher Ochoa is going to get?

[Update: Guilty. 30 years. Stacked.]

Three Whole Years Of Blogging

jamie@austindefense.com (Jamie Spencer) — Thu, 01 Oct 2009 01:01:01 -0600

This blog turns three years old today. Actually, I think the first live post may have been “Logical Fallacies and Marijuana Decriminalization” posted on September 21, 2006, and there were several articles written prior to putting the blog online, but I forgot to comment on the anniversary last week, so I’m arbitrarily moving it to October 1st. (I also reserve the right to re-forget and bump the birthday to the middle of October next year.)

I was researching gifts for my blog, but didn’t like the traditional anniversary presents of leather or crystal, and I finally came across a link from Amazon’s ListMania.

So, should I get my blog Candy Land, a Richard Scarry book, or a Mr. Potato Head?

Overheard

jamie@austindefense.com (Jamie Spencer) — Wed, 30 Sep 2009 13:39:17 -0600

Waiting in line for a down elevator after getting out of court this morning, a lawyer and a client talking about having the ignition interlock on his car "the whole time" while his case was pending:

Client: I haven’t gotten into any trouble for almost two years.

Lawyer: …and for you, that’s actually really impressive.

The lawyer had a big grin on his face, and the client laughed.