What a Week!!!

It's been a heck of a week. Monday I was set for trial on an aggravated robbery charge where my client was facing a minimum of 15 years and a maximum of life in prison. After a lot of hard work and trial preparation, the hard work paid off and my client got released from jail with time-served. 

Wednesday I started another trial, this one assault family violence allegation. My client is a professional and the allegation had put his entire career and future in jeopardy. It was a long ordeal, but after a two day trial the jury returned a just verdict: Not Guilty! I'm so happy he can now put this behind him. 

Whew! What a week!!!

The Siren Call of a Sinking Ship

The criminal justice system is in real trouble. This shouldn't be a surprise if you pay even the slightest bit of attention. No matter which way you slice it (wrongful convictions, the death penalty, mass incarceration, the failed war on drugs, the disparate impact of the criminal justice system on people of color...) the system is broken and causing more harm than good.

In October 2013, the incarceration rate of the United States of America was the highest in the world, at 716 per 100,000 of the national population. While the United States represents about 4.4 percent of the world's population, it houses around 22 percent of the world's prisoners. Don't let boring old numbers mislead you - that should be shocking. Corrections (which includes prisons, jails, probation, and parole) cost around $74 billion in 2007 according to the U.S. Bureau of Justice Statistics.

Yesterday Anderson Cooper did a piece on the New Orleans Public Defender's Office's decision to refuse felony cases. 50 some-odd lawyers handling 22,000 cases? Holy shit. It's inescapable that innocent people have been jailed, convicted, and sent to prison because of lack of access to competent legal counsel. The answer is not to shame the NOLA PD's office. Their decision to turn these cases away rather than offer half-assed representation is, in my view, right ("A lawyer poorly represented can cause irreparable harm to the client." says Chief NOLA PD Derwyn Bunton). Bunton likens the system to the factory-line scene from "I Love Lucy":  the system has become a conveyor belt that starts when you're arrested...and just clicks along until you're sent to prison. "It's not about figuring out at any point your innocence. Should you even be on this conveyor belt, no matter what you did?" 

The conveyor belt analogy is apt. The criminal justice system has become a soulless machine that gobbles people up and throws them away. It's bad for the people accused, their families, and society as a whole. It costs too much and doesn't make us safer. 

So what's the solution? Instead of the unthinking march to be ever tougher on crime, how about decriminalizing something for once? Does it make sense for nonviolent drug offenders to go to prison? Does it even make sense for drugs like marijuana to be illegal? Does it make sense for people with addiction issues to be sent to prison instead of receiving treatment? Whatever the solution is, it has to include adequate funding for law enforcement - which includes training and accountability measures like body cameras NOT just giving them more money to buy bigger and shinier toys to play with, mental health, indigent defense, community supervision, treatment, and reintegration into society. 

This is a huge problem that we cannot afford to ignore any longer.

The Death of Experts Impacts Criminal Law Too

It seems the "death of expertise" is a hot topic these days. A few weeks ago I heard Tom Nichols being interviewed on the wonderful program THINK on KERA about his book, "The Death of Expertise." The synopsis of that show sums it up pretty well: 

"With the Internet, nearly any fact or figure is just a click away. That democratization of information comes with downsides, though – including everyday people thinking they understand complex concepts as well as doctors, lawyers and other experts. Tom Nichols, a professor at the Naval War College, joins us to talk about the dangers of assuming we know it all..."

And then last week I saw "Why Expertise Mattes" on NPR where Adam Frank, an astrophyscist talks about the role of expertise in today's world of "alternative facts," "fake news," and denial in all it's forms. Again, the author sums it up pretty well: 

"By definition, an expert is someone whose learning and experience lets them understand a subject deeper than you or I do (assuming we're not an expert in that subject, too). The weird thing about having to write this essay at all is this: Who would have a problem with that? Doesn't everyone want their brain surgery done by an expert surgeon rather than the guy who fixes their brakes? On the other hand, doesn't everyone want their brakes fixed by an expert auto mechanic rather than a brain surgeon who has never fixed a flat?"

I see this sort of thing in criminal law all the time. I'm not talking about the defendant who simply doesn't trust his lawyer (my colleagues who handle court appointed cases will cringe in understanding and empathy at the phrase, "I want a real lawyer.") That's run of the mill distrust of you in particular (they didn't get to choose you and have frequently understandable misgivings about the criminal justice system of which you are a part, so voila. I'm talking about the defendant who does choose you as his or her lawyer but then questions your every move and/or makes his/her own suggestions based on absolutely no experience. The internet and the speed of information in modern society has undeniable benefits, but we mustn't turn a blind eye to the costs. WebMD doesn't make you a doctor. A YouTube video doesn't make you a carpenter. A little internet research on "the law" doesn't make you a lawyer. Seek out competent expertise and rely on it. Ask intelligent questions, of course. Make sure you understand the advice and if it doesn't make sense, question it. Just don't ASSUME you necessarily know better than someone who spends their life focused on your issue.

Police Can Force You to Use Your Fingerprint to Unlock Your Phone

It's undeniable that using nifty technology like the fingerprint sensor to unlock your smartphone is convenient. You also probably thought that it was more secure (for one it's encrypted and it's a lot better than no password at all, which was most people's security measure before the fingerprint password was introduced). It's becoming clear, however, that there's a gaping loophole in the security/privacy the fingerprint "password" provides. While police cannot ever force you to hand over your password, with a warrant they can force you to use your finger to unlock the phone. From the Atlantic: 

"The Fifth Amendment, which protects people from incriminating themselves during legal proceedings, prevents the government from compelling someone to turn over a memorized PIN or passcode. But fingerprints, like other biometric indicators—DNA, handwriting samples, your likeness—have long been considered fair game, because they don’t reveal anything in your mind. (Marcia Hofmann, a digital-rights lawyer, wrote a comprehensive rundown of the question in late 2013, when it was still hypothetical.)"

So think twice before you use your fingerprint to unlock your phone (or as the new technology comes out, your eye or your face or whatever). If you have something sensitive on that phone - whether it's text messages, photos, or your web browser history... or especially if you're an attorney with client information on your phone - you might want to rethink that fingerprint unlock feature.

Crushing Blow to Criminal Justice Reform: DOJ Ordered to Halt Independent Review of Forensic Science

Crushing Blow to Criminal Justice Reform: DOJ Ordered to Halt Independent Review of Forensic Science

AG Sessions orders the DOJ to gut the independent review board that looks into questionable (junk) forensic science and offers best practice guides. In it's place, he's putting the fox in charge of the hen house. Not very bold prediction: this will undeniably lead to more wrongful convictions. 

Top 10 Tips When You're Facing a Criminal Allegation

Top 10 tips for people facing a criminal defense charge, by Dallas criminal defense lawyer Mike Howard.

A Prosecutor's Vision for a Better Justice System

A Prosecutor's Vision for a Better Justice System

"When a kid commits a crime, the US justice system has a choice: prosecute to the full extent of the law, or take a step back and ask if saddling young people with criminal records is the right thing to do every time." In this talk, Adam Foss lays out a passionate and well-thought rethinking of the prosecutor's role in the criminal justice system. 

Texas Courts: Good Faith Reliance Erases Illegal Police Conduct

Just a few days ago the Texas Court of Criminal Appeals recently decided McClintock v. State. McClintock lived in a residence above a business accessible via a stairway at the back of the building. Police took a drug sniffing dog to the top step of those stairs and the dog alerted to the presence of drugs. Based on that, police obtained a warrant, found marijuana, and charged McClintock. McClintock filed a motion to suppress the evidence arguing that the dog sniff was an illegal search which violated the 4th Amendment. About that he was absolutely right: the dog sniff was a search that undeniably violated the 4th Amendment. The CCA, however, decided that if the police reasonably believes the evidence he used to get the warrant was legally obtained, then that "good faith reliance" erases the illegality of the search and makes everything a-okay.

Did you get that? It doesn't matter how illegal the officer's actions in obtaining evidence. As long as he "reasonably" thinks he was acting legally, it's okay. I wonder how often the Texas Court of Criminal Appeals (which is infamously police/prosecution-oriented) will find the officer's reliance to not be reasonable? Hmm...

This is patently absurd. Not only is the rule being created here ambiguous and hard to pin down (when is it reasonable? how do you determine that?) it's also disengenuous. Police get ongoing training on search and seizure law. They are trained on what they can and cannot do. Based on that they should've reasonably known this was an illegal search. And beyond that, think of the real-world implications of this - this basically incentivizes police departments to intentionally under-train their officers on the bounds of legal search and seizure. Hell, what they don't know won't be held against them, so why teach 'em anything, RIGHT? 

Ridiculous.

Immigration Case Before the Supreme Court that Could Change Criminal Practice

Yesterday the Supreme Court heard oral argument in the case of Jae Lee, a Korean immigrant who was charged with possession of ecstasy with intent to distribute it. Lee accepted a plea bargain after his attorney told him that he would not be deported. That advice turned out to be, as Justice Elena Kagan put it today, “supremely deficient”: In addition to the year and a day in prison to which he was sentenced, Lee’s conviction also carried with it the penalty of mandatory deportation. Lee asked a federal court to vacate his conviction, but the U.S. Court of Appeals for the 6th Circuit declined to do so. It reasoned that the evidence against Lee was so overwhelming that, even if he had received bad advice from his attorney that prompted him to plead guilty, Lee could not have suffered the kind of harm from that bad advice that would render his conviction unconstitutional. The justices today seemed more sympathetic to Lee than did the 6th Circuit, although it is not clear whether he can get the five votes needed to reverse the lower court’s ruling.

Currently, the Padilla case and it's progeny put criminal lawyers in a bind - while a criminal lawyer is generally not an expert in immigration law, after Padilla until this point the Supreme Court has expected criminal lawyers to give reasonably correct advice on immigration issues often far outside their scope.

If Lee loses his case it could create an entirely new standard - criminal lawyers are expected to give good advice on immigration issues, that is unless the government has a really strong case against the defendant with immigration questions. As much as I don't appreciate being expected to be an immigration expert on top of a criminal law expert, I don't see how an exception for "really strong cases against the defendant" would be workable. This will be really interesting to watch.

Again, a big thank you to SCOTUSBlog for it's wonderful case analysis

US Supreme Court to Texas: No More Using Junk Science to Execute the Intellectually Disabled

US Supreme Court to Texas: No More Using Junk Science to Execute the Intellectually Disabled

The Supreme Court tells Texas to stop using junk science to execute the intellectually disabled

When Can the Police Look in Your Car During a Traffic Stop?

When Can the Police Look in Your Car During a Traffic Stop?

You get pulled over by the police. The officer walks up to the window. When can the police look inside your car during a traffic stop? In general, the 4th Amendment to the US Constitution protects you and me from unreasonable searches and seizures. That is not, however, the end of the story. 

How to Find the Right Criminal Defense Lawyer

Knowing what to look for when searching for a criminal defense lawyer can mean the difference between your freedom and your worst nightmare. Dallas criminal defense lawyer Mike Howard discusses what you should be looking for in your search for the right criminal defense lawyer.

D Magainze Best of 2016

I am very honored and very proud to have been named one of the Best Lawyers in Dallas by D Magazine (category Criminal Defense: General). I work extremely hard for my clients. Acknowledgements and accolades are not why I do this, but I won't lie: it's nice to be honored now and then! I want to thank my paralegal Trish Hudson for her invaluable work. I cannot imagine what I'd do without her. I'd also like to thank my team of investigators who often time are the first to shed any light on the truth for our clients. 

Duh...YES!

D Magazine's Front Burner blog has a poll up about cite and summons (where instead of arresting someone for possession of small amounts of marijuana - thus taking up space in jail and costing we the taxpayer money - they issue the person a summons to appear in court) is a no-brainer policy Dallas should implement. Correction: should've implemented a long time ago. There's no good reason to continue to drag our heels on this. Continuing a pointless and expensive tough on drug crime approach is just stupid (and did I mention really really expensive?)

 

Houston Prosecutor Intentionally & Repeatedly Violated the Judge's Orders and a Doctor's Rights

Wow. Just wow. This is a perfect example of why prosecutors should not have absolute immunity. I respect the prosecutors I work with. Working with them day after day, I  trust that they work hard to the best of their abilities but always within the bounds of integrity and justice. 

When one goes off the rails and acts maliciously, however, there have to be repercussions. Police officers don't have absolute immunity (only qualified immunity). Prosecutors should be held to the same standard. 

The story of the persecution of Dr. Yetman in Houston (yes, persecution sounds strong, but read the story) is egregious and worth a read. The judge's 7 page order (imbedded in the story) is definitely worth the read!!! It's rare for a judge to find that a prosecutor intentionally sought a mistrial. It's even more rare for a judge to so explicitly lay out every instance of a lawyer's (much less a prosecutor's) misconduct.  

Dr. Yetman is a doctor in Houston accused of touching a little boy in his care at the hospital. Witnesses lined up to corroborate his claims that he was never alone with the child. The state's case basically crumbled and even the judge says a "not guilty" verdict was all but inevitable. Until the prosecutor allegedly intentionally provoked a mistrial to avoid an acquittal. Wow. Just wow.

Felony Dismissed!

Another good result for another happy client. Felony drug charge based on an illegal search...dismissed. 

On a related note: it's really nice when I present my argument to the prosecutor handling the case and she listens intently, thinks about it, and then says (along these lines) "unless the officers tell me something that's not already in the police report... I'll be dismissing this case." Sure enough, she did her homework, saw that the law has changed recently (Rodriguez US Supreme Court case in April 2015), and did the right thing. Bravo to a good prosecutor! Of course it's an adversarial system and sometimes we disagree, but when it's cut and dry, why mess around? Again: Bravo!

Predictive Policing Scares The Hell Out of Me

I swear I'm not just talking about the plot of the movie Minority Report or some hair-brained sci-fi novel. Police departments in Kansas City, Los Angeles, Miami, and Nashville as well as district attorney's offices in Manhattan and Philadelphia are using a computer program to try to predict who will commit crime. That's right. They're using computers to try to predict the future actions of real people in real life. From the New York Times article: 

...predictive policing, combines elements of traditional policing, like increased attention to crime "hot spots" and close monitoring of recent parolees. But it often also uses other data, including information about friendships, social media activity and drug use, to identify "hot people" and aid the authorities in forecasting crime.

Um, yeah... that's scary as hell. This essentially combines the already scary and (IMHO) discriminatory policing policy known as "Broken Windows" and combines it with scanning social media and who you're friends with in order to determine what you might do in the future. And if they decide you're a "hot person" (which in other connotations might be a desirable title, but not in this one) they put on the full court press to not only arrest you for even the most insignificant offenses but then prosecute those piddly little things to the fullest extent possible. 

I understand the desire to utilize advanced technology to advance the archaic criminal justice system, but this is something to dip your toe into, not jump in feet first without knowing if you'll sink or swim. It wouldn't surprise me if this works well in some places but also leads to a bunch of stomping on people's constitutionally protected civil rights in new and scary ways. 

Sickos Offer Governor Novel Approaches to Death Penalty

The drugs used to administer the death penalty in Texas (and other states) have become increasingly difficult to find. European pharmaceutical companies have stopped producing some of the drugs over their objections to their use to kill people. Never fear, a bunch of sickos have stepped up to the plate to offer novel and - let's be honest - twisted approaches that would get around the little hiccup of not having healthy stocks of the normal drugs. 

"After administering a strong sedative just drain blood until they have bled to death."

A pressure chamber, nitrogen, and the old firing squad were also suggested. Wow. Just wow.

Dallas Police Start Wearing Body Cams

DPD started outfitting a small group of it's officers with body cams. It's small, but it's a start. 

Deputy Chief Andrew Acord said about 55 officers in the central patrol division — which includes downtown, Uptown, Deep Ellum, Old East Dallas and The Cedars — have been issued the cameras. The northeast patrol division will also get about 11 cameras.

The next sentence in that same paragraph caught my eye: 

...Another eight officers who have multiple types of complaints against them will also get cameras, regardless of patrol division, Acord said.

Now that's smart. I understand rolling out cameras within one division. It's easier to manage the rollout and easier to monitor the successes and failures of the program. But outfitting - let's face it - problem officers (at least officers with multiple accusations of being problems) with cameras is just plain smart. Bravo DPD!

Deputy Chief Accord says his officers are excited about the cameras and clamoring to wear them. That's refreshing to hear, although it really shouldn't be. I've never understood the backlash by some officers against video & audio recording (be it in-car/dash cams, body mics, or now body cams). More than ever many officers feel that segments of the public (or the really paranoid set seem to think it's everyone) are out to get them. The Black Lives Matter movement and others like it unsettle them. This latest incident at Arby's further galvanizes the "us vs them" mentality (that frankly has always existed). If that's the way you feel, I'd think you'd REALLY want to wear a camera to prove you're following the rules and doing the right thing... unless you know you're not following the rules and not doing the right thing. I totally get that people will make up stuff against good officers ("he beat me up without provocation" or "he planted evidence on me..."). Body cams protect good officers from that just as much as they protect the public from bad officers. 

All in all, this is a good step in the right direction. Let's hope the train keeps on the tracks and doesn't get derailed.

Bite Mark Analysis: Another Junk Science Leading to Wrongful Convictions

Bite Mark Analysis: Another Junk Science Leading to Wrongful Convictions

Bite mark analysis, like bullet lead comparison and microscopic hair analysis before it, is increasingly questioned and maligned as junk science.