Austin Criminal Defense Lawyer

Sign Of The Times: iCop, iLawyer, iJudge

Jamie Spencer — Mon, 08 Feb 2010 10:47:56 -0600

From a recent PC affidavit:

…The tin contained four marijuana roaches and 6 small round pills with 2530 on one side and the letter v on the other. [Jamie’s client] said that the pills were Klonopin. I asked [Jamie’s client] if she had a prescription for Klonopin and she said she did not.

The pills were identified as Clonazepam via the Epocrates iPhone Pill Identification Application.

So the police are now using iPhone apps to check their homework. They don’t have to wait to get back to the station to check in their big book o’ pills; they can verify different types of prescription dope out in the field. Not that the intersection of law and the iPhone is limited to cops.

About a month ago, I was waiting around in an ALR hearing for my turn, re-reading my paperwork out of boredom, when a new possible-winning-idea entered my head. There was – possibly - an argument that what the officer had written on the preprinted form for reasonable suspicion was conclusory, and didn’t contain enough specific and articulable facts to support the stop.

That’s a fancy way of saying that with only the name of the transportation code violation and less than a sentence of explanation backing it up, I could argue the Department had failed to prove a good enough reason to pull over my client.

But I needed the code, really quick, and I hadn’t brought one. So I looked up Section 544.010, Stop Signs and Yield Signs on my phone. (I made the argument but lost the ALR – still, it was super helpful to the have the code handy.)

But wait, there’s more…

In a hearing I previously blogged about, the judge himself pulled out an iPhone, and looked up a provision of the Government Code while sitting on the bench. So even the black robes are using their iPhones for legal reference nowadays.

Outdumbing A Dumb Law

Jamie Spencer — Wed, 27 Jan 2010 17:53:01 -0600

I don’t care how stupid it is for the governmenr to criminalize marijuana, it’s stupid times moronic to post YouTube videos online called “How To Smoke” starring your teenage sons:

You never know who's watching online.

[The defendant] was arrested earlier this month after Sarpy County Sheriff's investigators connected him to about 90 "how-to-smoke-marijuana" videos on YouTube that also feature his sons.

Lt. Steve Grabowski said the videos — filmed over a 16-month period that ended about two months ago — show the defendant rolling joints and smoking marijuana from pipes and bongs with his two sons, ages 20 and 17.

He was charged with misdemeanor child abuse as well as possession of less than an ounce of marijuana and possession of drug paraphernalia.

I couldn’t find the videos online, so that means (a) he already took them down, or (b) there are too many how to smoke ganja vids on YouTube for me to find the specific ones referenced by this article. So in the meantime, enjoy a clip from a classic movie…

So What?

Jamie Spencer — Wed, 27 Jan 2010 17:34:47 -0600

As usual, I’m missing something. In today’s front page story, “Photo From Death Row A Sign Of Inmates Online”:

A condemned San Antonio law enforcement killer sent a photo of himself out of Texas' death row two years ago using a smuggled cell phone, officials said Tuesday.

The case confirms what prison officials have long suspected, that convicts — even those on death row, which is supposed to be the most secure part of Texas' massive prison system — have had Internet access with smuggled cell phones.

As always, for more substantive coverage on the issue of prisons and cell phones see Grits. That leaves me free to focus on the less important issues, such as…

I understand and accept that there’s a “time-out” component to prison, and one might assume even more so for death row, but how much taxpayer money do we really need to spend on the problem, if it boils down to emailed or instant messaged pictures from inside a cell?

Both Missing And Getting The Point: The Gateway Theory

Jamie Spencer — Tue, 26 Jan 2010 11:27:00 -0600

A recent comment led me to one of my first ever posts, one about the Gateway Theory of drug use. For those unaware of the fallacy, it goes like this: many/most/almost all hard drug users started with softer drugs like marijuana, therefore marijuana causes harder drug use. It is the gateway to cocaine, heroin, methamphetamines, etc.

My post concluded with:

Let’s ignore for now the refutation that a higher percentage of cocaine and heroin addicts consumed alcohol than marijuana, and we all “know” that alcohol use does not cause cocaine or heroin addiction… (since many readers, like me, are occasional alcohol consumers who have never tried cocaine or heroin)

Let me ask you this: don’t you think the percentage of cocaine and heroin users that drank milk sometime in their lives (before use of the drug) is probably almost 100%?
Correlation does not prove causation. That’s just another logical fallacy brought to you by the Drug Czar.

Arthur left this comment:

This becomes pretty vacuous at the end. Do you win a lot of cases?

The reason one would think that "the percentage of cocaine and heroin users that drank milk sometime in their lives...is probably almost 100 percent" is unsurprisingly because the percentage of nearly everyone who drank milk sometime in the lives is probably almost 100 percent.

Yes, Arthur. That’s true, and therefore it would be inane to argue that because the use of [milk/marijuana] almost always precedes the use of [cocaine/heroin] that the first caused the second. Vacuous indeed. I couldn’t have said it better myself.

Melendez-Diaz Still Good Law

Jamie Spencer — Mon, 25 Jan 2010 14:10:25 -0600

Can’t remember the last time a one sentence per curiam opinion was such good news. Here’s the entire opinion in Briscoe v. Virginia:

PER CURIAM.

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).

It is so ordered.

Whew!

From The Greek Word φυλάσσειν, Meaning To Guard, To Protect

Jamie Spencer — Fri, 22 Jan 2010 15:39:16 -0600

Tefillin:

S: (n) phylactery, tefillin ((Judaism) either of two small leather cases containing texts from the Hebrew Scriptures (known collectively as tefillin); traditionally worn (on the forehead and the left arm) by Jewish men during morning prayer)

Phylactery comes from the Greek verb φυλάσσειν which means to guard or to protect.

I’ll cop ignorance. I didn’t know anything about the word, its literal or religious meaning or its etymology, until after I read Greenfield’s post, “Better Safe Than Jewish”, but it only took me a minute or so of Googling to figure it out.

The Transportation Security Administration, whose motto is “Your Safety Is Our Priority”, is supposedly charged with guarding and protecting us. “Us” meaning good folks, those needing safety and security from bad folks. (See the TSA Blog motto: “Terrorists evolve. Threats evolve. Security must stay ahead. You play a part.”)

Instead of taking a few moments to figure out what was going on – read Scott’s post – the authorities freaked out and massively overreacted to a teenager’s prayer ritual on board an airplane. Scott ends with:

Just because you don't know what something is doesn't provide justification to deem it a threat. It just means you're a dope in a position of authority beyond your grasp. The solution isn't to subject Americans to ignorant will, but to keep ignorant people out of positions of authority.

True enough. But is Scott’s solution a mathematical impossibility? After all, this same agency just had to apologize for hiring and/or under training this genius.

When we live in a world where the paid airport guards think it’s funny to plant fake cocaine on a person as a practical joke, it’s not unreasonable of me to ask this question:

Are there now more positions of authority than there are non-ignorant people to fill them?

"Judge Keller's Conduct, However, Was Not Exemplary Of A Public Servant"

Jamie Spencer — Wed, 20 Jan 2010 17:37:21 -0600

Despite the title of this post, which is a quote from the Special Master’s findings of fact before the State Commission on Judicial Conduct, this report will surely be trumpeted by the pro-death penalty crowd as exonerating Judge Keller.

And why wouldn’t it be? It comes pretty close to giving her a clean bill of health, and recommends no sanctions especially in light of the “public humiliation she has already suffered”. I have my doubts that she is doing anything other than laughing all the way to the bench, but maybe she has learned something. Hard to believe since with hindsight she claimed, under oath, that she wouldn’t do anything differently.

Mostly I find it impossible to read the decision(and I’m not sure that’s even the right word for it) without some sense of sorrow. Is this what it has come to? After we kill a man, it’s just petty bickering about who is to blame for not doing this and not thinking about that soon enough? The decision boils down to this: "So what about Keller, his lawyers should have done a better job".

I’ve asked it before: should we kill a man because his lawyer made a mistake?

Haiti

Jamie Spencer — Fri, 15 Jan 2010 09:04:48 -0600

Donate Online

"I'm The Neighbor!"

Jamie Spencer — Thu, 14 Jan 2010 01:14:29 -0600

An out of town felony probationer, who was charged with misdemeanor shoplifting, who had just a few weeks left before completing said probation, called me nearly in tears asking me whether or not I thought the probation might expire before “they” found out about the potential new arrest.

Obviously, the concern about a felony revocation, with potential prison time as a punishment, was more pressing than even the new charge. Equally obvious, to me, was (a) that this question ultimately has to be placed in the “things we have no control over” file, and (b) consultation with a local criminal defense lawyer ASAP is needed. A local lawyer won’t be able to promise or guarantee anything either, but will be much more knowledgeable about local procedures, etc.

I made a referral, by which I mean, I told her the name of a lawyer I would consider hiring in the same circumstances. I thought that would be the end of it (it usually is).

The person called back. They had spent a good deal of time on the phone with said lawyer, and came away somewhat comforted and sufficiently impressed. This was the lawyer they wanted to hire. Then the lawyer quoted them $X thousand, up front no payment plan.

Potential client(PC) wanted to know whether I thought the lawyer would take half up front and the rest on payments. This was a new one to me. I’ve had occasions where folks call back and ask if I know a cheaper, but still good attorney in their neck of the woods. I told PC that I couldn’t negotiate on someone else’s behalf.

I thought that would be the end of it, but through the long distance phone calls come several more ideas about how this other lawyer might accept partial payments. Clearly, I have failed to make it clear that I can’t set someone else’s price, or payment conditions. After several reiterations of that concept, I decide to use a new tack.

Me: Let’s say you were looking for a bigger, nicer house to buy. Your neighbor tells you about a house he thinks is perfect for you. Just what you’re looking for. You go and check it out, but the owner’s are asking for waaaaaay too much money.

This is like you going back to your neighbor and asking them to lower the price of the house.

PC: Well, actually, many times real estate agents will cut their commission just to get a deal done. Sometimes both agents will discount and that lowers the price substantially.

Real estate agents? I’m in the business of persuading, of at least getting folks – prosecutors or jurors – of seeing my point, my side of the story. Am I really this incapable of explaining something so simple?

Me: I’m the neighbor. I’m not the agent. I’M THE NEIGHBOR!

Raising one’s voice is not an effective method of persuasion, but this time it seemed to do the trick. Afterwards, I had to explain to my assistant exactly how it came to pass that I was shouting “I’m the Neighbor!” repeatedly into my speakerphone.

Half A Meelion Unique Visitors

Jamie Spencer — Wed, 13 Jan 2010 08:12:32 -0600

This morning, my all time unique-IP address count of visitors reads 513,432, so I missed the mark by a week or two. Serves me right for not paying enough attention to my blog as of late.

What Sheriff Joe Arpaio Needs Now...

Jamie Spencer — Fri, 08 Jan 2010 09:50:07 -0600

…is a really good criminal defense lawyer. Don’t you just love it?

Objectively Reasonable Belief

Jamie Spencer — Sun, 20 Dec 2009 09:19:18 -0600

Via Pete:

Concerning the actions of the officers involved in the death of Jonathan Ayers on Sept. 1, 2009, we find that the use of deadly force by Agent Billy Shane Harrison was legally justified based upon his objectively reasonable belief that such use of force was necessary to prevent death or great bodily harm to himself or others,” a statement signed by the grand jurors read.

“Based upon this finding, we the Grand Jury believe that the officers involved in this incident would be immune from criminal prosecution pursuant to Official Code of Georgia Annotated 16-3-24.2.

Technically, There Are More Than Two Ways...

Jamie Spencer — Sat, 19 Dec 2009 02:04:26 -0600

From Ron Chapman’s new blog/website, “Federal Criminal Lawyer – Frequently Asked Questions”, comes this post titled in the form of a question, “How Can You Avoid a Minimum Mandatory Sentence in Federal Court?”:

In federal court, there are only two ways to avoid such a sentence:

1. Safety valve; and
2. Cooperation.

He then discusses how § 3553 (f) and (e) respectively allow for sentences under a mandatory minimum.

In fairness, I’m (a) being a smart ass, and (b) his post probably assumes without saying that we are in 3553-land to begin with.

Three Wee Kings

Jamie Spencer — Fri, 18 Dec 2009 23:24:39 -0600

Several classes of eight 3-year olds a piece, dressed as stars, shepherds, lambs, and other characters out of a nativity scene marched in through the nave, past the parents with cameras, and up to the front of the altar of the parochial Lutheran Daycare on a Wednesday morning at 11 a.m., and sang “Oh Come All Ye Faithful” and “Hark The Herald Angels Sing”.

When they sang “Away In A Manger”, the children – almost entirely in unison - cradled their arms for “the little Lord Jesus” and tilted their heads to their hands-as-pillows when he “laid down his sweet head”.

The whole thing was far more than necessary to warm the heart of any secular humanist. So whom should I thank that my pretrial hearing – the one that would have kept me in court at least all morning – got reset?

I Have A Kindle But...

Jamie Spencer — Fri, 18 Dec 2009 21:44:31 -0600

…I will not be moving to Laredo. [H/T: Robert W. Boyd]

Recent Searches

Jamie Spencer — Fri, 18 Dec 2009 02:28:22 -0600

Some google searches that caught my eye:

www. austin state laws on weed.com - Quick, check GoDaddy. It may still be available. Probably not with the spaces in the URL though.

Can judge still sentence jail after acquittal? – The answer is supposed to be “No”, but that’s not always the case. (Also see federal sentencing.)

How much is .5 of crack? - I’m tempted to say it’s exactly one half of crack.

I think each DWI should be judged accordingly – So do I.

Pleading guilty to a .039 bac – Seems like a bad idea.

Somebody left an open container in my car in Texas – I’m guessing this is not the end of the story. If you’re asking about the validity of that defense to a ticket/arrest, I give it a thumbs up. Unlike many/most Class C offenses, which require no mens rea, the Open Container statute requires knowing possession.

What's the purpose of the Texas Penal Code? – Where do I begin?

And the weirdest one?

Jamie Spencer and wife part – When I clicked through, I realized that the famous British jockey with my same name had recently separated from his TV announcer wife. (Makes more sense than what I first thought.)

[Update: 80% of the ideas that run through my head I stole from somebody - and the other 20% I have merely forgotten who to properly attribute. Having said that, I just now noticed that Gideon published a recent searches post, and his is much better than mine. I can't help but wonder... does he save up funny search queries? Because that's probably the way to do this. If his list is like mine - from recent recent searches, he must get a lot of great ones that go by the wayside. See: How to beat the law, if someone has naked pictures of you, and my favorite this time, crazy naked sex.]

Writ Update

Jamie Spencer — Thu, 17 Dec 2009 16:45:59 -0600

I didn’t give the prosecutor enough credit, when I pre-guessed that his response would be “out of time”. But he did throw a procedural wrinkle at me: Municipal Court judges can’t grant a writ. From Article 11.05, Texas Code of Criminal Procedure:

Art. 11.05. By Whom Writ May Be Granted.

The Court of Criminal Appeals, the District Courts, the County Courts, or any Judge of said Courts, have power to issue the writ of habeas corpus; and it is their duty, upon proper motion, to grant the writ under the rules prescribed by law.

Municipal court not listed, therefore a municipal court judge does not have the power or authority to issue the writ. Although 11.05 does not specifically say the list is exhaustive, it’s still a good procedural argument for the state.

A good argument, but for Texas Government Code Chapter 30, “Municipal Courts of Record”, Section 30.00006 “Judge”, stating in subsection (e):

(e) The municipal judge shall take judicial notice of state law and the ordinances and corporate limits of the municipality. The judge may grant writs of mandamus, attachment, and other writs necessary to the enforcement of the jurisdiction of the court and may issue writs of habeas corpus in cases in which the offense charged is within the jurisdiction of the court. A municipal judge is a magistrate and may issue administrative search warrants.

The judge decided he did have authority to hear the application, and to issue the writ if it were meritorious. To the prosecutor’s credit, he had told me beforehand that if his procedural issue failed, he agreed with the substance of the writ.

And so the judge granted it. I had initially typed up an order, but somehow neglected to attach it to the writ when filed, so the judge kindly signed this hastily hand written order. (Insert joke about lawyer who thinks his petition will fail, doesn’t bother to attach order. Ooops.)

Having attached proof of innocence (client had insurance at time of initial ticket) the case was dismissed and $394 ordered to be returned to client. The clerk told me they will notify DPS, which will not only reverse the $870 surcharge, but actually has a mechanism to refund monies already paid. I will follow up on that, but I won’t be holding my breath.

This Post Is For Ron (Only)

Jamie Spencer — Thu, 17 Dec 2009 13:39:33 -0600

Ron:

Regarding what we talked about in court the other day, my last post didn’t quite fit the bill. So I had to write another. This should do the trick.

P.S. Thanks for reminding me.

Writ On A Class C

Jamie Spencer — Thu, 17 Dec 2009 13:32:31 -0600

I’m about to go argue a writ of habeas corpus in Austin Muni Court, for a Class C No Insurance conviction from about a year and a half ago. Client attempted to pay some outstanding speeding tickets and the monies were wrongly applied to an FMFR that was pending.

When she returned a few days later with proof of insurance to get the dismissal, she was told “too late, we already convicted you when you came to the counter with money for the other ticket.” She filed a few motions for new trial – pro se – which were denied as untimely, and the case ended up in my hands after a few referrals and through UT Student Legal Services.

Should be fun. I wonder whether the prosecutor will say “Not Timely” in response to my writ. As if that applies…

[By the way, I don’t handle traffic tickets, and I make up my own mind what I’ll do pro bono, so don’t call me if you think you fall into either of those categories.]

And Introducing The Unethical Attention-Whoring Crappy Douchebag Lawyer

Jamie Spencer — Mon, 07 Dec 2009 16:03:06 -0600

It’s me.

So says Acerbic at his anonymous blog “Jamie Spencer – Crappy DWI Defense Lawyer”. Before we get to Acerbic’s accounting of the facts, let’s review what really happened.

Five days after its first post on October 10th, I gave a shout out to the newest criminal law blog in town: D.A. Confidential. Despite the short amount of time since its debut I predicted great things would come from it, and it hasn’t disappointed.

Skip ahead a few weeks, and the Austin American Statesman does a profile on our erstwhile anonymous D.A.C., which in turn was noticed by the biggest criminal law blog in town: Grits for Breakfast. I read D.A.C.’s latest post, and was happy to see commenting alive and well. One commenter (Acerbic) said, in part:

In the meantime I have favorited your blog and I plan to comment and criticize you frequently, just as I do with Grits.

Welcome to my blog roll :D

Hey anyone that comments regularly on Grits, and now is following D.A.C. might have some good things to say on his own blog, right? So a click through to his profile and it comes up empty. Hmmmm, this commenter hasn’t linked his blog to his comments. But I’m still interested to see what he writes about. I leave a comment, in part:

Also, Acerbic - your profile says no profile. What's the URL of your blog?

The problem with folks who have a paranoia button is that the rest of us never have any idea what it is that will set it off. Apparently Acerbic’s wack-job dial is set pretty low, because my seemingly innocuous question really did the trick. Here’s a smattering of what followed:

Jaime, lets put it this way: I wouldn't want you handling my case…I don't have a blog or a website. If you don't know how web 2.0 works, well that's not my problem…I have no use for ambulance chasing morons…

And Jamie Spencer, AUSTIN DWI LAWYER is nothing but an attention whore…

I'm not a lawyer, hell, I don't even live in Texas. But here this shyster is demanding I tell him how to find my website so he can investigate me...all because I told some ADA in a faraway place I thought his blog is cool.

Yowsa. Mark Draughn of WindyPundit tried to point out some of Acerbic’s errors:

Dude, you said you put this blog in your blog roll which---as anyone who understands web 2.0 should know---sort of implies you have a blog.

"this shyster is demanding I tell him how to find my website so he can investigate me"

Er, you told us you had a blog, which is why Jamie asked for the URL, I would think...

But now you're saying you don't have a blog? Okay, but then you don't have a blog roll either. You just have a list of blogs you like to read. Not that there's anything wrong with that.

I even made the mistake of chiming in with an attempt at humor (unreproduced here, you can read the whole thread at D.A.C.) but to no avail. Acerbic went on to claim that he said he didn’t have a blog, which he did say, but only after I had asked for the URL.

Yeah, so… I left a comment at D.A.C. – and didn’t do it anonymously. Many reputable bloggers actually ban anonymous commenting, while others allow them, but give them the weight that they deserve. I will of course continue to leave my signature when I visit other people’s homes. And by the way, Google has said you don’t really get any juice from commenting in the first place(“[We are] pretty good at devaluing these types of links”).

So calm down Acerbic. What did you say your URL was again?