Austin Criminal Defense Lawyer

More About Perry's Expunction Veto

jamie@austindefense.com (Jamie Spencer) — Wed, 08 Jul 2009 22:26:15 -0600

On June 19th, Perry vetoed the unanimously passed expunction bill. Since then, here are some other bloggers weighing in on the topic: Grits for Breakfast, Paul Kennedy, Grant Scheiner, Doug Weathers, and last but not least, fellow Austin criminal defense lawyer Kristin Etter.

Short version? Well, let's just say that no one has had anything good to say about Governor Haircut.

A Note On War Stories And Blogging

jamie@austindefense.com (Jamie Spencer) — Wed, 08 Jul 2009 22:03:06 -0600

Sometimes I want to write a post about “what happened in court today” but there are a few considerations that usually prevent me from doing it.

1) Dockets are a public record. For all intents and purposes, this means if I admit I’m talking about something that happened literally today, then I’m potentially letting the cat out of the bag. The exact “who” is protected by attorney client privilege; the precise “where” – which county, which court – is rarely necessary for the point of the story; it’s the “what” happened part that (may) be worth blogging.

2) The exact “who” may not be limited to my client. I have conversations with prosecutors that may be important to telling the story – but again, it’s never been my intention to call a particular prosecutor out, at least in a public forum. (That assumes, of course, that anyone is reading, but hey…)

3) I might add to the list later, there are other reasons that aren’t occurring to me right now. I’ll link to this post from now on when I write something, and then post it later, to make it clear I’m not taking about today today.

Sorry for wasting your time; I guess this will just end up as a link in other posts from now on. I think it will help me though, to write about some things when they are still fresh in my mind.

Why Was 6 Afraid Of 7?

jamie@austindefense.com (Jamie Spencer) — Wed, 08 Jul 2009 22:00:32 -0600

Because 7-8-9.

[Two quick excuses: Sorry for being corny, but the twins are about to turn three, and my humor literally tends to run on the juvenile side these days – yes, more juvenile than before I had children. Also, I don’t expect to be alive a hundred years from now, so if I’m ever going to post this “joke”, then today’s the day to do it.]

Best Law Blog Name I've Seen In Awhile

jamie@austindefense.com (Jamie Spencer) — Wed, 01 Jul 2009 13:03:55 -0600

Bicker, Back & Forth, P.S.

I’ve got to come up with a good name for this blog. Any suggestions?

Rick Perry's Definition of "More Harm Than Good"

jamie@austindefense.com (Jamie Spencer) — Fri, 19 Jun 2009 22:56:37 -0600

The Governor’s reason for vetoing the expunction bill:

House Bill No. 3481 would authorize the expunction of criminal records, including law enforcement case files, 180 days after an arrest if no formal misdemeanor or felony charges have been filed. Current statutory provisions require that the statute of limitations for the particular offense, usually at least two years, expire before criminal records may be destroyed, including in cases involving misdemeanor offenses.

Actually, those statutory provisions were not put in place to deny folks the opportunity to expunge dismissed cases. It was the activist (as well as 100% Republican) Texas Supreme Court decision, State v. Beam, that incorrectly interpreted the legislature’s 2001 amendment’s to Code of Criminal Procedure Chapter 55.01 dealing with expunctions.

That’s OK. Sometimes courts misunderstand the legislature’s intent. I really don’t have a problem with that – as a general rule. It’s bound to happen. After all, the legislature can fix the misunderstanding when it meets again. In Texas, that’s only every two years, but hey, Texans are never in more danger than when the legislature is in session, so the less often we allow those politicians to gather, the less frequently they will do us any harm.

But in this case, the legislature wanted to send a very clear message to the Court that it had gotten it upside down. So, they wrote, debated, amended and variously fussed over House Bill 3481, to remedy the Court’s unintentional error in interpreting their will.

What was it that the legislature wanted to fix? The Court’s decision that folks have to wait the statute of limitations before expunging a dismissed case. Heck, the bill analysis let’s us know what they meant this time around:

One result from the Texas Supreme Court’s ruling in State v. Beam, 226 S.W.3d 392 (Sup. 2007), was an interpretation that even if a criminal indictment was dismissed or quashed because of a mistake, false information or lack of probable cause, a defendant had to wait for the statute of limitations to run out before getting an expunction.

That’s right. After Beam, it no longer even mattered why the case was being dismissed. Accidental indictment? False information, i.e., the D.A. determines the complaining witness is a lying sack of ****? Not even probable cause to arrest? Tough luck. No expunction until the statute of limitations has passed.

Doesn’t particularly help a person wrongly indicted for murder, which has no limitations period. And, more commonly, the misdemeanor defendant whose lawyer convinces the County Attorney to dismiss? Has to wait two years until after that dismissal. Even in cases where the prosecutor has voluntarily agreed to dismiss.

(For unimportant technical reasons, folks usually will wait slightly less than two years after the dismissal before eligibility for an expunction in a misdemeanor. Short version: the statute is running in between the time of the arrest and the time of the filing of an information. So however long it took the prosecutor to officially file charges at the County Clerk’s office can be subtracted from the “date of dismissal + 2 years” formula. I say it’s unimportant to this post, but in some cases that can substantially shorten the waiting period.)

But, back to the point at hand, here is the legislature saying, in no uncertain terms, that making a person wait to erase their criminal arrest record for any amount of time when they have been wrongly accused is… well, it ain’t what they meant. And it’s ridiculous to boot.

Bill analyses, in an apparent attempt to compete with Fix News in the “fiar and balanced” department, always include a section about what opponents to the bill say. Sure, it ended up passing unanimously, but here’s what a hypothetical opponent might have said, according to the House:

The state should not limit the public’s access to records of indictments by changing the effect of the Supreme Court’s ruling. Currently, those whose indictments were quashed or dismissed due to mistake, false information, or lack of probable cause can have their records expunged after the reasonable requirement that they wait for the statute of limitations to run out.

So imaginary critics of the then-proposed-but-not-yet-unanimously-approved HB3481 would say, if they existed, “Un-unh”. (How does one spell that?) They went on to add:

This allows the public appropriate access the criminal records while persons are still subject to prosecution for a crime.

True. Voting against this bill would allow the public to access arrest records of persons who… should never have been arrested in the first place. If that’s the best reason not to vote for the bill, no wonder it passed.

But Perry vetoed it anyway. And what’s he got to say for himself? Well, he couldn’t let it become law, because:

[I]n its final form, it would have done more harm than good to our citizens.

What an idiot.

Signs of the Times

jamie@austindefense.com (Jamie Spencer) — Tue, 16 Jun 2009 10:44:48 -0600

No texting in court. Reminds me of back when I started practicing(1997), cell phones were just becoming common in every day life. More and more lawyers were changing out their pagers for cell phones.

In those dark ages, however, every phone’s ring sounded virtually identical. You didn’t have several options, just the default; and you sure couldn’t download the latest Britney Spears tune as your ringtone.

Basically that meant some lawyers, and I’m including myself here, reached for their cell phones in a mini panic when one let loose in court. Sounded like my phone, maybe it was. Eventually I learned not to react that way – even if it was my phone – because while most of the time it wasn’t, if I looked guilty and was reaching around fiddling with mine when the judge looked up from the bench, I was going to be the one to blame in her mind.

So now it’s no texting. I think that refers to the defendants, because lawyers are always whipping out their iPhones/Crackberries and typing various important messages into them – but I guess I’m not sure.

And as long as we’re on the topic of signs, let me end with one more. I’ll leave it up to the reader to spot the unfortunate use of a carriage return:

"I Could Be Doing Real Police Work"

jamie@austindefense.com (Jamie Spencer) — Tue, 16 Jun 2009 01:57:24 -0600

Quoting a member of Law Enforcement Against Prohibition, Nicholas Kristof sees the light in the cleverly and accurately titled “Drugs Won the War”:

He said he gradually became disillusioned with the drug war, beginning in 1967 when he was a young beat officer in San Diego.

“I had arrested a 19-year-old, in his own home, for possession of marijuana,” he recalled. “I literally broke down the door, on the basis of probable cause. I took him to jail on a felony charge.” The arrest and related paperwork took several hours, and Mr. Stamper suddenly had an “aha!” moment: “I could be doing real police work.”

Also see Dallas criminal defense lawyer Robert Guest’s frequent posts re: opportunity cost.

Deterrence, Retribution or Rehabilitation?

jamie@austindefense.com (Jamie Spencer) — Sun, 14 Jun 2009 19:41:52 -0600

From the New York Times:

On Monday, Judge Ricardo M. Urbina of the United States District Court for the District of Columbia, sentenced a former senior pharmaceutical executive to write a book.

Earlier this year the executive had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

So as part of his federal misdemeanor probation, the defendant must write a book. About what, and for what purpose?

The judge sentenced Dr. Bodnar to two years of probation during which he is to write a book about his experience connected to the case…

In the sentencing hearing on Monday, Judge Urbina said he would like to see Dr. Bodnar write a book about the Plavix case as a cautionary tale to other executives.

I’m all for creative sentencing, at least as far as it leads to probation rather than prison, and especially for non violent offenses. Seems the judge’s argument is for deterrence: the defendant’s tale is a cautionary one for other executives tempted to be untruthful during federal investigations.

Infinity Ranch has a more humorous perspective:

As a writer, the idea that a judge would equate writing a book with punishment is kind of disappointing.

But on the other hand, there are probably dozens of things most people enjoy doing that I'd consider punishment.

Watching an entire season of American Idol on DVD, for instance. Might plead the Eighth Amendment on that one.

As a criminal defense lawyer, IR’s instincts are to assume that all sentencing considerations are punitive, or doled out for retribution. No argument with the gut reaction, go to court for awhile representing the accused and that’ll be your assumption after a while as well.

But allow me to suggest this particular condition of probation is best categorized under the most forgotten and least utilized reason for punishment, at least as federal sentencing is concerned: rehabilitation.

Is there a better way to learn from your mistakes than to think about them? And can you think about something, anything, more than when you write about the subject?

De Facto Legalization of Prostitution?

jamie@austindefense.com (Jamie Spencer) — Wed, 10 Jun 2009 02:34:31 -0600

Mike, of Crime and Federalism, reads an article about sex trafficking, “San Francisco Is A Major Center For International Crime Networks That Smuggle And Enslave”, and proclaims:

I'd always said, gee, of course prostitution should be legal. I'm changing my mind. San Francisco has de facto legalized prostitution. You can go to MyRedBook.com to read reviews of "massage parlors." Prostitution is, more-or-less, legal.

San Francisco is, not coincidentally, a center for sexual slavery. The San Francisco Chronicle did a report on this issue in 2006. The situation has not changed…

In reality, centers where prostitution is legal in form or substance - like Amsterdam and San Francisco - are also centers of sex slavery. This is not abstract argument or a priori philosophical nonsense. This is empirical fact.

How can you support legalized prostitution when it will - in fact - lead to sexual slavery?

Two intersecting problems with Mike’s logic here (I was going to say “equally huge problems” but decided against it – how do you measure gargantuan vs. colossal?)

In no particular order, let’s start with the fundamental misunderstanding of what the illegal/immoral conduct consists of: kidnapping, unlawful restraint, sexual assault, aggravated sexual assault, compelling prostitution, and not limiting it to statutes in the Texas Penal Code, which is inapplicable in San Francisco, there’s the Thirteenth Amendment.

Criminal prostitution, that is, the voluntary but illegal offer or agreement to engage in sexual conduct for a fee, is really not implicated in the Chronicle piece. Instead, the author Meredith May recounts how women are recruited to come to the United States for a variety of reasons, and then…

Typically they are locked inside their place of business, forced to have sex with as many as a dozen men a day. Sometimes victims are forced to live in the brothel, too, where five or six "co-workers" are crammed into one room.

Their "owners" confiscate their travel documents until the women pay off exorbitant sums. Often captors will ensure the women never pay off their debts, by tacking on fees for food, clothing or rent. Some fine the women for displeasing customers, being late to work, fighting or a host of other possible transgressions.

On top of mistaking serious violent criminal activity with prostitution, Mike compounds his error with plain old fashioned bad logic.

I'm sure some of you can make libertarian arguments in favor of legalized prostitution. None of them will be arguments I have not thought of or considered.

Libertarians will disagree, no doubt, but the greater flaw is Mike’s straw man construction. (That particular logical fallacy usually refers to misstating the opponent’s position, and then knocking that position down like a straw man; not 100% applicable here, but I’m not sure what else to label it.)

Mike claims that prostitution is de facto legal. In other words, the law criminalizing prostitution is still on the books, but since it is not enforced, it is in effect legal. This is just plain wrong, and will ruin his conclusions for multiple reasons. Back to the newspaper article, where he (perhaps?) gets this wrong headed “prostitution is basically legal” argument to start with:

San Francisco's liberal attitude toward sex, the city's history of arresting prostitutes instead of pimps, and its large immigrant population have made it one of the top American cities for international sex traffickers to do business undetected, according to Donna Hughes, a national expert on sex trafficking at the University of Rhode Island.

A “history of arresting prostitutes instead of pimps” is not evidence that prostitution laws are not enforced – quite the opposite. Prostitutes are arrested, their bosses are not. That’s entirely different. For example, due to Austin Police Department’s impressive sting operation budget, it’s actually the customers that are arrested most frequently, then the street workers, and least of all the pimps. For practical reasons, it’s easier to arrest prostitutes and their johns (who, since they are the agreement part of the “offer and agree” equation – will also be charged with prostitution) than the people running the enterprise.

So while it may be true that people who run prostitution enterprises are not often prosecuted, the (mostly) women that are the actual prostitutes are not free to ply their trade as they see fit. Customers ultimately drive any business model, and there’s a reason for the phrase “world’s oldest profession”: it’s the world’s oldest customers.

Subjecting only those on the front lines to prosecution is not de facto legalization. It’s a recipe for unregulated activity. Only those willing to break the law will become the boss; and they obviously don’t care what laws they are breaking… they’ll break all of them. At the expense of the sex worker.

A Citizen of the World

jamie@austindefense.com (Jamie Spencer) — Tue, 09 Jun 2009 22:06:29 -0600

From Newt Gingrich’s speech last night at some important fancy-shmancy Republican Party fundraiser:

Let me be clear about this: I am not a citizen of the world… I think the entire concept is intellectual nonsense and stunningly dangerous.

He’s taking dead aim at this portion of Obama’s July 2008 Berlin speech:

I come to Berlin as so many of my countrymen have come before. Tonight, I speak to you not as a candidate for President, but as a citizen – a proud citizen of the United States, and a fellow citizen of the world.

When you query “Obama Berlin Citizen of the World” on YouTube, the kooks come out with all their Obama = New World Order nonsense; and frankly the more establishment right wing MSM tried to frame Obama’s speech as an unintentional confession that he was indeed, as they claimed, some sort of foreign/terrorist/hater of America.

Other presidents have used the phrase though. Here’s George Bush the Elder praising Vladimir Horowitz while awarding the pianist the National Medal of the Arts:

To Vladimir Horowitz for his extraordinary achievements and distinctive style as a pianist whose concerts brought pleasure to audiences everywhere and whose contributions to music made him a citizen of the world.

Of course that’s only Bush 41 saying something nice about a foreign born come naturalized citizen. It’s not from the mouth of or about someone the conservatives gush over.

Here’s Ronald Reagan introducing himself in 1982 before the United Nations General Assembly Special Session Devoted to Disarmament:

Mr. Secretary-General, Mr. President, distinguished delegates, ladies and gentlemen:

I speak today as both a citizen of the United States and of the world. I come with the heartfelt wishes of my people for peace, bearing honest proposals and looking for genuine progress.

Newt's not calling Ronnie un-American, is he? That sort of blashphemy could get you kicked out of the tiny tent...

The Smell of Books

jamie@austindefense.com (Jamie Spencer) — Tue, 09 Jun 2009 08:32:43 -0600

I’ve read 5 books so far on my new toy, and expect to write a review of the Kindle soon. Assuming I ever get around to posting it, one of my few complaints, and an unfair one at that, will be that it just doesn’t feel like a book. I knew that, of course, before purchasing it and actually I’ve gotten pretty used to holding it and using it as “a book”.

On a related topic, ACDL reader Arsenic Julep (aka “my sister”) sent me this link:

Moving to an e-book reader can be a delight, but some of us enjoy the experience of books as well as the text inside. If you’re a reader of new books and love that freshly-cut-and-bleached paper smell, they’ve got a spray for that. You can get it here; you can also go to the devil for all I care, because I prefer the “Classic Musty,” which is what my apartment smells like with all these centenarian buckram and leather editions laying around.

I also enjoy breaking the back of a new book, stretching it in all the right places to make it appropriately “bendy”. Think someone’s gonna make a can of that for the Kindle?

May 35th, 1989

jamie@austindefense.com (Jamie Spencer) — Thu, 04 Jun 2009 23:23:26 -0600

I’m no First Amendment scholar, but I’ll lay donuts to dollars that versus freedom of speech and freedom of religion, “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” is the least litigated of the First Amendment’s three spheres of protection**.

The reason for that? My uneducated off-the-cuff guess would be that while the majority always rules the legislative branch, it’s easy for them to forget that only unpopular and therefore minority speech needs protection. Ergo lawsuit. And inherent tensions between the free exercise and establishment clauses of freedom of religion simply demand litigation. It’s enivitable.

But we can go protest what the government is doing on each and every corner of Main Street, right? That’s what makes America great. Even our elected officials (most, anyway) know their next election chances are unduly risked by squashing open, public dissent. A right so ingrained is only infringed upon infrequently.

Citizens of China, however, are afforded no such assurances. So on the 20th anniversary of Tiananmen Square, the People’s Republic entirely shut down Blogger, Twitter, Flickr, Bing, along with other internet sites and major email services. Meanwhile, earlier today, from NYT op-ed columnist Nicholas Kristof:

China has blocked the use of "June 4" in Internet postings. So people are referring to the crackdown on "May 35."

So what’s the Chinese corollary to the Streisand Effect: One great leap forward is two humongous steps back? First the massacre, then the day after, the “tank man”:

**Second and third paragraphs of this post as originally written, re: how many protections the First Amendment offers:

[Assembly and petition can obviously operate separately, and petition for redress of grievances naturally intersects with free speech, but I still think of it as primarily three areas. All possible 1A issues, considered individually or every combination together is four factorial(4!), which leaves 24 possibilities; or, if freedom of religion is broken down into its two parts, establishment and free exercise, then five factorial is 120 combinations. Some combinations are either silly or impossible to reasonably imagine.

This is why I don’t blog more often – I tend to get bogged down in unnecessary tangents. Sure, primarily I’m lazy, but the not-so-occasional inability to stay on point has ruined many a well intended post. Neither the math nor the various convergences are germane to my point; let’s assume there are three main parts to the First Amendment, and I’ll try to finish my original thought.]

Bing-O

jamie@austindefense.com (Jamie Spencer) — Mon, 01 Jun 2009 10:31:15 -0600

Any other referrer watchers out there getting flooded with searches from Bing?

It could be that the new Microsoft search engine (some say the name BING is an acronym for But It’s Not Google) is simply getting the initial benefit from curious internet users, and that Google will keep increasing its stranglehold on search.

But so far, the new site seems to be getting good reviews. I'm torn between two competing instincts: (a) my need to at least try out the newest techie thing, and (b) my desire not to contribute to the global Microsoft monopoly. I guess I'll go mess around with it, with full intentions of returning to the Google. Am I playing with fire?

[Update: Wow.]

Kill Him Already

jamie@austindefense.com (Jamie Spencer) — Mon, 01 Jun 2009 01:48:18 -0600

It’s been twenty years. Two years after the 1989 murder of a Georgia police officer, Troy Davis was convicted and sentenced to die for the crime. He has still, eighteen long years later, still not been executed.

Former federal prosecutor and noted softie Bob Barr writes an op-ed piece in the NYT:

There is no abuse of government power more egregious than executing an innocent man. But that is exactly what may happen if the United States Supreme Court fails to intervene on behalf of Troy Davis.

Mr. Davis is facing execution for the 1989 murder of an off-duty police officer in Savannah, Ga., even though seven of the nine witnesses have recanted their testimony against him. Many of these witnesses now say they were pressured into testifying falsely against him by police officers who were understandably eager to convict someone for killing a comrade. No court has ever heard the evidence of Mr. Davis’s innocence.

After the United States Court of Appeals for the 11th Circuit barred Mr. Davis from raising his claims of innocence, his attorneys last month petitioned the Supreme Court for an original writ of habeas corpus. This would be an extraordinary procedure — provided for by the Constitution but granted only a handful of times since 1900. However, absent this, Mr. Davis faces an extraordinary and obviously final injustice.

In the same article, regarding his vote for the Anti-Terrorism and Effective Death Penalty Act of 1996, which allows such an absurd result, Barr explains:

I wanted to stop the unfounded and abusive delays in capital cases that tend to undermine our criminal justice system.

Sorry Barr. You, and the other pro-death penalty advocates can’t have it both ways.

Frivolous appeals that clog the system from guilty-as-sin murderers got you down? They’re all filing petitions and writs just to avoid execution? Fine, write a law that shortens time limits, and limits successive appeals.

To insure finality, to protect victim’s families from the pain of not knowing when the condemned will die, make certain courts are able to “bar [defendants] from raising claims of actual innocence”. Otherwise, there will be no end. Certainly can’t have them dying of old age before the needle gets them.

But please accept that there will be other types of casualties: common sense; the public’s regard for the courts and the so called rule-of-law; and, of course, the occasionally innocent man.

Either/Or. Your pick. The last paragraph of your impassioned plea is misguided. Everyone knows you can’t have your cake and eat it too:

I am a firm believer in the death penalty, but I am an equally firm believer in the rights and protections guaranteed by the Constitution. To execute Troy Davis without having a court hear the evidence of his innocence would be unconscionable and unconstitutional.

Come Senators, Congressman, Please Heed The Call

jamie@austindefense.com (Jamie Spencer) — Sun, 31 May 2009 21:57:37 -0600

The political landscape is shifting. Perhaps slowly, but the numbers don’t lie.

The first elected official who ever made the case to me for legalizing gay marriage — and maybe the last, come to think of it — was Jesse Ventura, the former governor of Minnesota…

His libertarian philosophy extended to social issues, on which Ventura, who counted gay men among his closest aides and friends, said government had no business intruding.

As the governor told me then, he didn’t care what the gay couple next door were doing in the privacy of their home, including hanging up a marriage certificate, just as he didn’t think anyone should pester him about keeping a gun in his nightstand.

From last week’s NYT Magazine article “Queer Developments”, by Matt Bai. Same source, the percentage of respondents, by age, who agree that not allowing same-sex couples to marry is discrimination, by age:

18-34 year olds     60%
35-54 year olds     45%
55 and older           38%

To explain the statistically significant difference in results by age, Bai hypothesizes:

The gist of the disagreement now isn’t partisan or theological as much as it is generational.

Unlike their parents, younger Americans and those now transitioning into middle age have had openly gay friends and colleagues all their lives, and they understand homosexuality to be a form of biological happenstance rather than of emotional disturbance.

They’re less inclined to restrict the personal decisions of gay Americans.

On the second paragraph, I agree and disagree. First the agreement: people who know and interact daily with openly gay co-workers, neighbors, roommates, friends, and, not in the least, family members soon discover the truth: a person’s sexual orientation is irrelevant. To anything and everything, unless perhaps you want to date them and are yourself of the opposite sex persuasion.

They can be your best friends or be jerks, brilliant or dim, trustworthy or dishonest… in other words, “they” as a group are… just like everyone else. They are human. Their sexuality is irrelevant. (I’m assuming in part you don’t spend any time considering your straight friends’ sex lives. If you’re a pervert, or some sort of deviant unable to stop fixating on what everyone you come into contact with does in the bedroom, you may as well stop reading this post.)

Back to Bai’s point: humans fear the unknown. When gays were forced by society into the closet, some people never realized they worked and lived along side homosexuals. Folks were then able to convince themselves, incorrectly, that everyone they knew was straight. This situation kicked in the “us vs. them” gene, and allowed them to assume that gay people were “others”. “They” were different, and therefore to be feared and condemned, ridiculed and scapegoated.

So Bai is correct that, in part, the shifting opinion polls and differences in attitudes between young and old are in great part due to one simple fact: the younger you are, the more likely you are to “know gay people”.

As far as the second part of his statement, his biological happenstance/emotional disturbance dichotomy isn’t completely off base either. Certainly the gay-friendly among us don’t believe that being born homosexual is some sort of psychological problem. (While psychiatrists are still feeling political and social pressure when it comes to the upcoming 2012 edition of the Diagnostic and Statistical Manual of Mental Disorders, I believe homosexuality has been removed from that mix.)

But I propose that the real answer lies in part I: Gen Y, for all its faults, more than previous generations, doesn’t even consider why gays are gay, they just don’t care. It doesn’t matter. End of story.

And to politicians wishing to stir up the basest of human emotions, willing to pit one fine American against another, for the sake of playing to an ever shrinking base – a base that is literally dying off? Bob Dylan said it first: the times they are a-changin.

A Good Lawyer Is A (Very Very) Busy Lawyer

jamie@austindefense.com (Jamie Spencer) — Thu, 28 May 2009 02:55:39 -0600

Starting with a little free market theory, let’s assume that he who builds the best mousetrap will eventually dominate the mousetrap industry. (I don’t insist that this is so; just throwing it out there to start the post.)

It follows therefore, that in the service industry, the better services you provide, the more customers will come your way. Surely then, the best way to measure the worth of a lawyer is by the number of his clients.

From a Houston Chronicle article on overworked defense lawyers comes this line:

Some felony cases are resolved in minutes.

It’s a true statement, sad but true. I actually can't tell if the author of the article is using the factual accuracy of the statement to justify the result. According to the article, one lawyer in Houston has accepted representation of 360 felony cases or more, every year, presumably for years. In a recent post, “It All Adds Up To Incompetence”, Houston defense lawyer Paul Kennedy breaks down the math:

There are 52 weeks in a year and five working days in a week. That's a maximum of 260 days at the courthouse -- not counting holidays. That means that [this lawyer] accepts, on average, at least 1.3 felony cases a day, every day. There is no way a competent attorney can provide meaningful representation to his clients working that type of case load.

Paul is intentionally being generous. There are county holidays, of course, so the courthouse is not really open that often. And his math precludes even the remotest possibility that one in three hundred plus cases is tried, because for each of those you’d have to knock out another day or two on average, at a minimum.

He points out some of the things the minute lawyer can’t reasonably be expected to accomplish:

It is impossible to investigate a felony case in "minutes." It is impossible to determine whether there are any legal issues to litigate. It is impossible to analyze the factual evidence or to interview witnesses in "minutes." The only thing that's possible to do in "minutes" is to parade a client in front of a judge and have him branded a felon for life.

Let’s add some other improbabilities to the impossibilities list: reading the indictment; heck – for that matter – reading the police report, or at least scrutinizing it carefully in its entirety; having a long enough conversation with your client to get his side of the story; meeting with your client several times – which can be necessary to establish the amount of trust required between attorney and client; getting several, usually better-each-time offers from the prosecutor; the list boggles my mind. It’s almost endless.

Could it be that the mousetrap rule doesn’t hold true for criminal defense lawyering?

Clarity From Ambiguity

jamie@austindefense.com (Jamie Spencer) — Wed, 27 May 2009 23:22:19 -0600

George Mason University School of Law Assistant Professor Neomi Rao writes a Wall Street Journal op-ed piece suggesting questions for recent Supreme Court nominee Sotomayor’s confirmation hearings. She notes that:

[A] great deal of law is made (and unmade) when the court interprets statutes…

Statutes are enacted through a difficult constitutional process. They require passage by the House and Senate and the president's signature.

Justice Antonin Scalia argues that this finely wrought procedure requires judges to stick to the text of statutes and follow their plain meaning. Justice Stephen Breyer has argued, to the contrary, that judges should interpret statutes pragmatically to promote good consequences.

Ms. Sotomayor needs to identify where she lies on this spectrum.

If it’s not obvious out of context – or from the fact that this is published in the WSJ – read the whole thing, and you’ll easily conclude that Rao favors the Scalia model. Not surprising for a former associate counsel and special assistant to George W. Bush. The closer you are to the Scalia portion of the “spectrum” the more worthy you are of confirmation.

“Follow the plain meaning” – makes sense, judges are there not to make the law, but to interpret it… we all learned that in third grade.

Let’s back up however. What question was it that Rao thinks Sotomayor should be asked, where her response should be the Scaliaesque “plain meaning” answer?

The question itself, an ellipsis, and the Scalia portion of her answer, repeated for emphasis, follows:

What is the court's role when interpreting ambiguous laws?

… Scalia argues that this finely wrought procedure requires judges to stick to the text of statutes and follow their plain meaning...

If a nominee is asked how they should interpret an ambiguous law, and they seriously respond “by following the plain meaning of the statute”, they should be disqualified on the grounds of stupidity.

You've Just Been Acquitted

jamie@austindefense.com (Jamie Spencer) — Sun, 24 May 2009 15:43:15 -0600

“Helio Castroneves, you’ve just been acquitted of Federal income tax evasion charges, what are you going to do next??”

“I’m going to win the Indy 500!”

Congrats.

"Are Those Your Grades? You Can't Do That..."

jamie@austindefense.com (Jamie Spencer) — Tue, 19 May 2009 19:54:21 -0600

So said Ally Sheedy to Matthew Broderick around the 2 minute mark of this clip in WarGames, as he hacks into the school’s computer and changes his F to an A.

Meanwhile, in the real world, or in Tallahassee anyway, a student was sentenced to 22 months in the federal pen for much the same thing:

A former Florida A&M student was sentenced Monday to 22 months in prison and three years' supervised release in a case involving unauthorized grade changes at the university, according to the U.S. Attorney's Office.

He was the second defendant to be sentenced on charges of aggravated identity theft, unauthorized access of a protected computer, conspiracy to commit wire fraud and a substantive count of unauthorized access of a computer. He pleaded guilty on all charges…

There was a little more to it than Broderick’s crime in WarGames…

The three co-defendants caused the grades of about 90 FAMU students to be changed, affecting 650 grades overall, according to the U.S. Attorney's Office. About 114 grade changes were failing "F" grades changed to "A" grades, said Karen Rhew, spokeswoman for the U.S. Attorney's Office. The three men also caused residency status of certain students to be changed from out-of-state to in-state, reducing the amount of tuition owed by thousands of dollars.

…but don’t forget, Ally Sheedy had her grades changed too. According to a prior Department of Justice press release, the defendants were paid to change grades; presumably Broderick’s character changed Sheedy’s grades simply to impress her. And public high school students don’t pay tuition, so there was no monetary loss for the movie shenanigans vs. the in state/out of state tuition scam, but it has me wondering.

Broderick’s next big movie was Ferris Bueller’s Day Off. Is truancy next on the US Attorney’s radar?

[Hat Tip: Sentencing Law & Policy]

She Don't Lie, She Don't Lie, She Don't Lie

jamie@austindefense.com (Jamie Spencer) — Thu, 14 May 2009 21:22:24 -0600

99% chance this turns out to be (a) bogus or (b) no different than anywhere else, but:

A study commissioned by the Spanish government to monitor that country's air quality has reported what most European travelers already knew: Their entire country is just one enormous coke den. Like, you can breathe it!

Reports MSNBC:

A new study has found the air in Madrid and Barcelona is laced with at least five drugs - most prominently cocaine.

The Superior Council of Scientific Investigations, a government institute, said on its Web site Thursday that in addition to cocaine, they found trace amounts of amphetamines, opiates, cannabinoids and lysergic acid - a relative of LSD - in two air-quality control stations, one in each city.

The study also revealed that levels of narcotics in the Spanish air seemed to increase on the weekends and near college campuses.

The spike on or around weekends or campuses seems odd. Suspiciously odd. Really don’t know what to say about it.