Thursday, April 29, 2010

Thoughts about age

It's my mum's birthday today, she's 71. Spritely as a 45 year old, though, make no mistake.

Happy Birthday, mum.

But that got me thinking. About how old my mum is.

No, wait, about age. About the age of some of the people I see in court every day. I think that perhaps age is the one true variable, the one thing where I see diversity every day.

By that I'm stating the obvious in that I rarely see handsome, wealthy, executives in Brooks Brothers suits. I see a lot of minorities, disproportionate to the ratio out in the real world. I see very few pirates.

But every day there are defendants who should be drawing rude pictures in their history books at high school, young men who can't possibly be as chronologically deficient as they look. But they are.

I see hordes of people in their twenties, no surprise there, but the shock is that they show up to court with their four kids. Or two grandkids.

The middle-aged ones often get lectures from the judges, if they're getting probation: "Aren't you getting too old for this merry-go-round?" They hand their heads and nod, knowing it's true.

And some who are, absolutely positively, too old to be picking up their first felony. I'm talking seventies. Oh sure, they don't pop up often but we see them. And we see plenty of their younger brethren, men and women in their 50s and 60s who are up on yet another theft or drug charge.

Age as the unpredictable factor in court. I'd not thought about that until today.

Thanks mum. And happy birthday.

The gift card is in the mail, I promise.

Tuesday, April 27, 2010

Verdicts from last week's trials

Here are the results from last week's trials:

Defendant: Kwan Ng
Offense: Injury to a Child
Prosecutors: Jackie Wood and Allison Benesch
Defense Atty: William Rugely
DISPOSITION: Guilty, jury sentenced to 13 years TDC

Defendant: Johnny Adame
Offense: Robbery
Prosecutors: Marianne Powers and J.D. Castro
Defense Atty: Selena Alvarenga
DISPOSITION: Guilty, jury sentenced to 75 years TDC

Defendant: Ben Chambless
Offense: Manslaughter
Prosecutors: Clinton Butler and Judy Shipway
Defense Atty: Steve Orr
DISPOSITION: Guilty of criminally negligent homicide, deadly weapon finding, jury sentenced to 8 years TDC

This week's jury trials


Defendants: Joseph Foley and Michael Cooper

Offense: Aggravated Robbery

Prosecutors: Jason Knutson and Mary Farrington

Def. attorney: Berkley Bettis and Jon Evans


Defendant: Ruben Avila

Offense: Aggravated Assault with a Deadly Weapon

Prosecutors: Kathryn Scales and Laurie Drymalla

Def. attorney: Bristol Myers


Defendant: Angel Varela

Offense: Intoxicated Assault and Aggravated Assault with a Deadly Weapon

Prosecutors: Jeremy Sylestine and John Hunt

Def. attorney: Brad Urrutia

Disposition: 4/26/10: Defendant pled after jury selection, negotiated plea, Class B DWI 180 days TCJ, Class A Assault, 364 days TCJ (concurrent)

Monday, April 26, 2010

Dressed for the part

If you're a defendant and you show up to court wearing a T-shirt that says, simply, "BAD" then I wonder about you.

And the young lady who knew she would be standing in front of the judge pleading guilty to her felony while sporting a shirt proclaiming her to have an "apple bottom." Why? (In the latter case, it was close to perjury, just so you know.)

But day after day I see people dressed like they were . . . well, I don't know what. Am I old fashioned? A stick in the mud? A fuddy duddy? I don't expect people to show up in suits, I understand that a lot of these folks simply don't have the money for fancy duds.

But flip-flops and unwashed T-shirts?

It's to the point that when someone does show up in a suit, I am impressed. As they sit there, waiting for their case to be called, I usually check them over to make sure they're not a lawyer from another jurisdiction, parking his keister in the wrong place.

Tell me what you think. Am I unrealistic expecting people to dress up a little for court? You know, socks and shoes. A shirt with a collar.

I'll check in tomorrow with some specific examples. And if you're a lawyer, tell me some of the things you've seen.

Friday, April 23, 2010

The FBI and serial killers

So, as promised here I went to the FBI's seminar on its Highway Serial Killings Initiative yesterday (thanks for not breaking into my house while I was out!).

It was both fascinating and educational. There was a lot of info about the various tool that the FBI is using to collate information about these killings and, hopefully, catch the unsubs doing them.

"Unsub" is an FBI word, short for "unknown subject," feel free to use it.

Anyway, we heard about FBI programs like ViCAP, which is an amazing tool that cross-references every scrap of info you can imagine about the victims, the killings, and the suspects. I have no doubt that it will work wonders in years to come. Read about it here, if you want to know more.

The best part of the program, for me, was when the senior special agent from the BAU (aka profiler) showed us pics and gave us details from a real crime scene, then went through the steps of analysis that led to a correct profile and the killer. Mesmerizing.

But if you are too lazy (okay, busy) to check out the FBI's web page on the initiative, here's the gist:
Yes, that's a map of 500 bodies found alongside highways, murders that the FBI wants to solve.

But it's not just that there are a lot of bodies - I had no idea that there were 200 men (oh yes, always men) suspected of killing women. 200 murderers floating along the highways and by-ways with blood on their hands. Truckers? Mostly, yes.

And it's not just that there are a lot of suspects - the FBI actually knows many of their names! Seriously, I was hugely impressed (and surprised) that they have done enough work to have a list of people they believe are guilty of murder. Names, birth dates, pictures. Your time is drawing nigh, fellas. (I checked, trust me, and my name was not on the list but I thought. . . thought, I saw yours. . . .)

Actually, I've been a little jokey here but these guys are dedicated and working so hard to catch some truly despicable people. Truck driver Adam Lane, for one. And so far, at least 10 suspects believed responsible for some 30 homicides have been placed in custody.

In my book, that's a dashed good start.

Wednesday, April 21, 2010

The Assistant has An Intractable Problem

Last week, DAC talked about his difficulty in crafting an appropriate
punishment for DWI defendants who were illegal immigrants. This week I
want to talk about my intractable problem- DWLS, or driving with
license suspended.

In Texas, the first time you’re charged with DWLS
is usually a Class C misdemeanor, a fine only misdemeanor. However, it
is a Class B misdemeanor if a defendant has been convicted of DWLS
before, doesn’t have insurance, or their license was suspended due to
a DWI breath test refusal. In these cases a defendant is facing up to
a $2,000 fine and 6 months in jail, which is no small potatoes.

Here’s the problem. For many people, their license is suspended as
the result of a DWI or for not having insurance. Then after they’re
convicted of that offense, in addition to the fines and court costs,
the State imposes a “driver responsibility fee.” This Orwellian named
program requires payments of $200 to $1,000 a year for three years in
order to reinstate the defendant’s driver’s license. If you don’t pay
the fees, your license is suspended. This creates a Catch-22 that
Grits for Breakfast
has covered in more depth than I could possibly
give here.

So you see how this plays out- Joe Citizen gets pulled over and
doesn’t have insurance because he doesn’t think he can afford it. Joe
pays his fine and court costs on the ticket, but then can’t pay the
driver responsibility fees, so his license stays suspended. On top of
that, he still doesn’t buy insurance. So a few months later, Joe gets
pulled over again, and this time arrested for Class B DWLS. He sits
across my desk after announcing that he wants to plead guilty and…

Any conviction is going to: 1) Have more fine and court costs, 2)
either place him on probation with a $35 a month fee OR send him to
county jail for a while and risk losing his job, 3) impose another
driver responsibility surcharge he can’t pay, and 4) push him further
away financially from being able to get a valid license and insurance.
At the same time, Joe’s conduct is blatantly criminal and in my
estimation very blameworthy. Joe knows he’s not allowed to drive, and
chose to anyway. By driving without a license and insurance, he’s
essentially shifted ALL the risk of driving a motor vehicle to other
people. It doesn’t matter how poorly he drives, someone else is going
to pay for it. On a personally infuriating note, the cost of my car
insurance coverage for uninsured motorists is HIGHER here in Texas
that it was on the urban east coast.

So here’s what I usually work out. Joe pleads not guilty, and has the
case set for trial in a month or two. I tell Joe that if he can bring
me proof that he’s gotten his license re-instated, then I’ll dismiss
the case. The goal of the law is to make sure that people who drive
have a license, so I figure if we can accomplish that goal, then
there’s no need to proceed with the criminal case. This way, Joe can
use the money he would have otherwise paid in fines and court costs on
this case to pay off his surcharges and buy insurance. This,
theoretically, should also help my too-high insurance rates.

Next time around I want to talk about breath-test refusals, and how
they’re an entirely different animal. In the mean time, does anyone
else have any bright ideas of what to do here? Repealing the driver
responsibility fees would probably be a start, but I can’t personally
make that happen. Ignoring the law and simply not prosecuting these
offenses isn’t an option either. So what is?

Tuesday, April 20, 2010

Jury trials this week... and one verdict from last week.

Verdict from last week:


Defendant: Christopher Robinson
Offense: Capital Murder
Prosecutors: Jim Young and Meg McGhee
Defense Atty: Jon Evans
DISPOSITION: Guilty - automatic life in prison

And onto this week's trials:


Defendant: Kwan Ng
Offense: Injury to a Child
Prosecutors: Jackie Wood and Allison Benesch
Defense Atty: William Rugely


Defendant: Johnny Adame
Offense: Robbery
Prosecutors: Marianne Powers and J.D. Castro
Defense Atty: Selena Alvarenga


Defendant: Ben Chambless
Offense: Manslaughter
Prosecutors: Clinton Butler and Judy Shipway
Defense Atty: Steve Orr

Coming up . . . serial killers!

As my regular readers, and those who know me in the flesh, are aware, I have a fascination with serial killers.

An entirely benign interest, I assure you.

On Thursday, though, I am attending a seminar put on by the FBI dealing with serial killers operating on our highways, particularly the interstates. This is the website associated with the program they are putting on.

Who knew?

I've never, to my knowledge, met a serial killer. I have spoken to half a dozen murderers in person, all before I became an ADA, and all were on death row for their crimes. Ah, the benefits of being a journalist.

The most chilling was the one I mentioned the other day, Eric Nenno, who was on death row for killing a seven-year-old girl just outside Houston back in 1995. I interviewed him last year for a book I was planning to write, asking to come see him by just mailing a letter. He wrote back saying, essentially, "Sure, come see me, but hurry because I'm being executed in a couple of weeks."

So I hurried to death row, getting there on a Friday. His execution date was the following Tuesday.

I was there a couple of hours and it felt surreal. His appeals were done, he had no hope for salvation (bodily, at least), so he spoke openly. He admitted to being a pedophile and it was only after a couple of hours that I really saw how messed up his wiring was: he was describing the moment he lured the little girl to his house. He'd done so by offering to show her his guitar (her dad played in a band).

"I asked if she wanted to see it, and when she said 'Yes,' that's when I knew she wanted to [be with] me."

Yes, that's what he thought. He said something similar when I asked if he'd done anything like this before. He told me about the girl he'd kissed while her mother was out of the room, how they'd kissed each other, and more. She was five.

My hair stood up on the back of my neck, and I wanted to . . ., well, you can imagine.

But I'm reminded of that interview because as I look at the map on the FBI site of all those highway killings I can't help but wonder how many people there are out there, people we walk, run, and drive past every day, whose wiring is so differently and so dangerously connected.

Maybe I'll get some insight Thursday. If so, I'll report back.

Okay, I'll report back anyway.

Monday, April 19, 2010

I cannot tell a lie...

We all know from television (that great oracle, that font of all wisdom) that the results from a lie detector test are not admissible in court. You knew that, right?

But did you know that they are still very much a tool for law enforcement? In major cases detectives sometimes ask those close to the investigation, friends and family members of a murder victim, say, to take polygraph tests to "rule them out" as suspects.

I was interviewing an FBI profiler for a book and he told me that this guy basically confessed after taking a polygraph, because he knew it would show he'd been lying. (An aside: I also interviewed Nenno himself, four days before his execution. A very weird experience.)

What I didn't realize was that polygraph tests are used to monitor compliance in sex offender cases. So, after a conviction a sex offender can be required to take a test to make sure he's not been using the Internet inappropriately (or at all), to ask him whether or not he's been lurking near schools. It makes sense, I guess, assuming the tests have a (large) degree of accuracy to them.

But do they? A quick google search will answer that for you, though opinions do vary. I note that a Texas court recently said that even the results from these sex offender check-ups can't be used in court. For example, if an offender is on parole with certain restrictions and when he's tested he comes back as dishonest and in violation of those conditions, his parole can be revoked after a hearing. However, the test results can't be used as evidence in that hearing.

Sound contradictory? A little, maybe. But until polygraphs are deemed reliable enough to be used in court it seems like a fair decision. And, as the appellate court pointed out, investigators can use the results to kick off or direct further, more traditional, investigative techniques and evidence-gathering methods.

Thursday, April 15, 2010

Jury trial update


Defendant: David Saldana
Offense: Sexual Abuse of a Child
Prosecutors: Leslie Booker and Jackie Wood
Defense Atty: Ray Bass

Disposition: GUILTY
Sentence: Life in prison

From Kipling to me, from me to my Henry.

Although I, occasionally, think of myself as a writer, I have to admit I'm not much into poetry. Limericks, sure, but poems? Not my cup of tea.

With the odd exception.

Here's one that almost everyone knows (at least a few lines of it) and I like this version because of the original and wonderful way that it's presented.

And it seems apt for my blog because it's about taking responsibility for your life, being the best you can be, and not making excuses. That's a conversation I have in court every day.

It's a poem I'd like to read to my son one day.

Have a look and you'll see why.

Wednesday, April 14, 2010

The one that didn't get away...

Thanks to The Assistant for bringing this to my attention. The headline says it all:

Robby Rose pleads guilty for cheating in bass tournament

As The Assistant put it: "I love being a prosecutor in Texas."

But remember, it's not about the fish, it's about the boat. Anyway, a limerick I just made up to commemorate the occasion:

There once was a man who caught fish,
He cheated to try and get rich,
When he caught a small mullet,
He shoved a weight down its gullet,
And now he's out on his a*#.

Tuesday, April 13, 2010

He's back! "A Question of Voume," by The Assistant

I always look at DAC's new case breakdown with a slight case of envy.
No, not because he gets all the sexy cases, like trace amounts of
cocaine, but because compared to my docket he gets so dagnabbed FEW of

As a reminder- I'm the only assistant in my county. This means that
basically every single misdemeanor committed in my county eventually
comes across my desk. I'm the intake attorney, the plea negotiation
attorney, the trial attorney, and if it came down to it, the appellate

There are good things about this arrangement. Most notably,
I am personally familiar the criminal history of LOTS of my repeat
defendants. I know who their friends are, who their family members
are, where they drink at, and who they get into trouble with. This is
often very useful information for a prosecutor. I also very quickly
know if someone's a first timer, and maybe I can help put them on the
right path with a pre-trial diversion or deferred adjudication.

Since I'm the only assistant, I've been pretty busy the past week with
various things including three protective orders and a mental
commitment where the person tried to assault the bailiff. Not only
have I been negligent in my blogging, but I've let my case intake
stack up. So here, then, is a look at the case intake currently
sitting on my desk from the various agencies that have submitted cases
to my office since April 1:

DWI: 22 cases
Assault: 11 cases
Driving with License Invalid: 5 cases
Theft: 5 cases
Possession of Marijuana: 3 cases
Reckless Driving: 2 cases
One case each of: Filing a False Report, Criminal Mischief, Criminal
Trespass, Engaging in Organized Criminal Activity.

51 cases. And that's not counting the handful that I've already weeded
through in the spare moments waiting on a judge or defense attorney or
something. Each case has at least one offense report (and often two or
three) that I'll read and a criminal history to go through. Nearly
every DWI had a traffic stop video that I'll watch, ranging from 15
minutes to an hour and a half. The other cases may have evidence from
a few photos to videotaped witness statements.

Is this mix of cases standard? Mostly. DWI has been a point of
emphasis among patrol recently and the detective assigned to them has
been working overtime trying to clear his desk, so that number is
bigger than I would normally expect. Likewise, the number of marijuana
cases is lower than I would expect. Overall though, that's about what
I'd expect- Assault, DWI, and POM, with a few others thrown in for

Monday, April 12, 2010

Jury trials this week


Defendant: Christopher Robinson
Offense: Capital Murder
Prosecutors: Jim Young and Meg McGhee
Defense Atty: Jon Evans


Defendant: David Saldana
Offense: Sexual Abuse of a Child
Prosecutors: Leslie Booker and Jackie Wood
Defense Atty: Ray Bass

Murder and mayhem... Ah, what a relief.

Every single day I am reminded of the scope of pain and desperation that hides beneath the quirky, fun veneer that is Austin. I see 18-year-olds shipped off to the penitentiary, and men three times their age standing in court, bedraggled in their striped pyjamas, looking at yet another prison stint because of their addiction to drugs.

I hear mothers plead for mercy because they don't want to be separated from their kids, promising to stop using meth or stealing, and I see the effects of random violent crime in the victims I meet, and in the forlorn faces the parents of victims that I can't meet, because they are dead.

I've stopped watching crime shows in the evening, not because I can't stand how unrealistic they are but because I see enough human destruction during the day. All of it as pointless as an episode of CSI.

And yet there are days I am reminded of how lucky I am to be knee deep in this mire. Days when I see or read something that makes me shiver with disgust and horror and makes the kinds of things I deal with seem so much less evil.

I'm talking about a different kind of law: civil litigation. This is the kind of law where people sue each other for monetary damages. The kind of law where truth and justice cower on the sidelines as each side sharpens a multitude of deadly weapons in the fight for money.

Specifically, I am talking about a story I read in this morning's Statesman about a gym suing the mother of a little boy who drowned there. No, I'm not kidding.

I won't profess to know the ins and outs of the lawsuits, I pass no judgment on the legal merits of each sides claims, counter-claims, and cross-claims. All I know is that a little boy drowned and people are now fighting to see who can get the most money from the other.

You can see why, I think, I look forward to heading up to court this morning to deal with matters of theft, drug peddling, and, when I'm lucky, the occasional transvestite prostitute.

That one's a story for another day.

Friday, April 9, 2010

The best in crazy criminal news, right here.

It's been a nice week, lots of work done in the office and it looks like Spring has sprung. So, in a lighter mood let's have a look at some of the funny criminal stuff going on.

First, and this might be obvious to you, if a cop is nice enough to offer you a ride home when your pal is arrested for DWI, wait until you get home to pop your malt.

Locally, a story about cheerleaders. I'm not totally shocked they'd pee in someone's soda (though it's not very original) but I am shocked they have a "Cheerleader Constitution." What does it say? "Thou shalt be peppy at all times." Maybe, "Thine pom-poms shall be given names and spoken to like children." I do love this country.

Here's a tip: when you play an April Fool's joke, please make it funny. Oh, and when it lands your son in jail, it ain't funny.

Talking of jokes, did San Luis Obispo really ban feeding ducks at the park? Really?? Why yes, they did.

Pet chicken escapes.
Policeman decides that dangerous chicken on the lam needs shooting.
Gets his fireman friend to do it.
With a bow and arrow.
Kebabs, anyone?

I wonder, if you can have inmates power their TVs by pedaling, can we power a whole prison that way?

And finally, a look back (and east) at Asia's ten dumbest criminals of the past ten years.

Tuesday, April 6, 2010

What do inmates buy in prison? Food... lots of it.

Anyone interested in the criminal justice system will be interested in this amazing treemap that shows in great detail, and in a cool way, what inmates are buying from the prison commissaries. You have to think that the food in Texas prisons is gross because that's the vast majority of purchases.

That's all. It'll suck you in, trust me.

Jury trials this week





















Monday, April 5, 2010

A rock and a hard place

Here's a situation I find myself in once a week at least, and to the best of my knowledge it's a situation without an obvious solution. Here's a typical example:

A defendant is charged with felony DWI, his third. He is here illegally from Mexico. Normally, on a third DWI I'd offer probation but INS has a detainer on him: as soon as we conclude his case he'll likely be deported. Unless he's convicted of a misdemeanor, in which case he might be able to stay.

This effectively takes probation out of the equation as it's simply not possible for someone to successfully complete probation if they are deported: they can't report, they can't be tested for illegal substances, they can't do community service, and they are not likely to pay their probation fees. A non-starter.

This means that my options are:
1. Recommend prison time (penitentiary, not just county jail), a minimum of two years; or
2. Reduce the charge to a misdemeanor.

I am often asked to do the latter by defense attorneys, who argue that their client has been working hard, and will be punished doubly if convicted of a felony: prison when most people get probation, and separation from their family when deported.

They are right, that is harsh. But my response usually comes in the form of a question: Should someone really get a break because they are here illegally? I wouldn't normally reduce a felony to a misdemeanor, and doing so because someone has entered the country illegally seems unfair.

This is a pickle for all involved, for prosecutors, defense lawyers, and of course for the defendants themselves. I offer no solutions, though I'm open to hearing them. All I can hope is that those who represent the undocumented bone up on the law and make sure their clients know what they are facing. Kudos, then, to attorney Jamison Koehler for addressing this topic in his defense-oriented blog, here.

Education seems to be his best bet, but until he or I come up with the definitive solution to the issue, I for one am accepting suggestions.

Friday, April 2, 2010

Funny Friday...

Ah, April Fool's Day. Why can't it last a week?

And am I really supposed to post something serious today? I hope you're not expecting that. In fact, even worse, I'm stealing (sorry, "fair using") a video I just watched on the blog belonging to another Texas legal blogger. So apologies for the unoriginality and apologies for remaining in the spirit of silliness. (By the way, both apologies are insincere.)

So, this is the kind of interview technique that cleared cases in the past. You know, the Good Old Days.

Thursday, April 1, 2010

Fighting crime in Austin

The Statesman announced several initiatives that the police and DA's office are taking to reduce crime, fight drug addiction, and basically make our streets safer. The story broke in mid-January and is here.

Since then, several new initiatives have been put forward, some a little revolutionary. One flows from the positive influence of the Free Hugs Campaign and is due to begin later this month. I think it's kind of cool.

It's called Hug-A-Cop (HAC) and will consist of pairs of officers patrolling downtown Austin, targeting high-crime areas and just offering to hug passers-by. The idea, I'm told, is that when people see police officers hugging strangers, the general feeling of goodwill will spread. They will be in pairs because one will be dressed in combat fatigues, heavily-armed, in case the person receiving the hug reacts badly. He will also wear what's being called a HAC-Cam, to record all incidents.

Another initiative is very Austin-centric. In fact, yesterday the Statesman wrote about the proposed Night of the Bat. This initiative involves the purchase and distribution of 15 Batman costumes, which will be worn on SWAT missions by the team leader. The idea is that the image of Batman ready to take action will persuade a lot of people to give up without a struggle. Seems like a stretch to me, but we'll see.

The next program, based here in the courthouse will begin after the summer heat dissipates, and you'll see why. It's called "Lifting Spirits." What they are thinking of doing is randomly halting the elevators in the courthouse for up to twenty minutes between floors. It's based on a study from Maine University that suggested people got to know one another and formed positive experiences from being put in peril together, especially in close confines. There are some liability issues to work out but I'm in favor of increasing the amount of friendliness in the building. Just not in July and August please!

One thing in it's early stages, and I mean days: after my post about the wig that I have, one of the higher-ups came by my office to talk about all DA's maybe wearing a formal attire in court, maybe wigs but that would also require robes. The cost of such an outfit would come out of the public purse, a few thousand per lawyer, so it'd be about $100,000 plus laundry expenses. Naturally, I'm in favor but I've no idea if it'll go anywhere. The other possibility is a "trial kilt" from these people, something with the DA logo on.