Tuesday, August 11, 2015

A Lesson for Lawyers and the Public: How to Get, Use, and Win With The Houston Police Department Body Worn Camera Policy

Body Cameras, The Police, and Criminal Cases

University of Cincinnati Police Officer Ray Tensing would have you believe that he shot and killed Samuel DuBose in self-defense after Mr. DuBose reached for something then drove off, dragging Officer Tensing.
Police body camera footage shows that Officer Tensing and the thin-blue-line lied in their offense reports.
Texas Trooper Brian Encina would have you believe that Sandra Bland was arrested for violating a lawful order.  Sandra Bland was found dead days later after being charged with assaulting a peace officer, an assault which was conveniently not on camera.
Dashboard camera footage shows that Trooper Encina violated department policy and failed to inform Ms. Bland why she was being arrested.
North Charleston, South Carolina Officer Michael T. Slager would have you believe that he shot Walter L. Scott in self-defense because he feared for his life after Mr. Scott took is Taser.
A bystander’s cell phone footage showed that Officer Slager cowardly shot Mr. Scott eight times in the back as Mr. Scott ran in fear for his life.

WHAT DO THESE INSTANCES HAVE IN COMMON?

Each of these occurrences of police brutality members of our communities share many troubling facts in common.  First, a driver committed a minor traffic violation.  Second, an officer used unnecessary force.  Third, a person who was entitled to due process and equal justice under the law was denied his or her constitutional rights.  Fifth, the suspects died in police custody.  Sixth, the officer lied on his officer report or arrest affidavit.  Seventh, the events were caught on camera and exposed the truth.  This paper focuses on using Body Worn Cameras to demonstrate that an officer either lied in his offense report or violated your client’s constitutional right to be free from unreasonable search and seizure.
Police unions are relatively correct in their assertion that officer involved shooting that result in civilian deaths are rare in relation to the total amount of officer-civilian interactions.  However, there still remains this staggering number:  690.  Six-Hundred-and-Ninety civilians have died at the hands of police officers as of August 4, 2015 according to killedbypolice.com.
Having just returned from my semi-annual Gideon’s Promise training session, I am reminded of an important fact that its founder, Jonathon Rapping stresses.  For every Michael Brown, Samuel DuBose, Sandra Bland, Andrew Scott Gaynier, Ezell Ford, and Eric Garner, there are hundreds of thousands of criminally accused people being processed into jails and prisons around the country like sheep at a slaughter house.
In light of the national conversation regarding police brutality and video footage, I want to advise you of my experience involving a lying police officer, an unlawful arrest, body camera footage, and an in-trial dismissal following a successful motion to suppress.  If every lawyer takes the time to learn from my recent experience, I am confident we will chip away at number of people going to jail and prison, which is a seldom seen tragedy that is destroying America right before our very eyes.

WHAT THE POLICE SAY:

On July 7, 2014, my client, Jane Doe, was sitting in the driver’s seat of a parked car at a public park.  Her friend, John Doe, was sitting in the front passenger seat.  Both front doors were wide open.  Jane was eating a slice of pizza as John was smoking a blunt.  According to the officers, they were doing a standard park check in a high crime and high drug park, when they noticed a small pile of loose tobacco outside John’s door.  After noticing the tobacco, according to the police, they engaged in a consensual encounter, but while walking up to the car, they noticed John place ‘something’ in the ashtray, and smelt the strong odor of marijuana as soon as they exited their vehicle.  The cops then detain both suspects and conduct a search of the passenger compartment of the vehicle where they find two blunts in plain view within easy reach of Jane.  The officers then write that they walked around the trunk and smelt the strong odor of marijuana which gave him reason to open the trunk.  An officer opens the trunk and immediately finds almost two ounces of weed in a plastic bag packaged for sale.

WHAT THE BODY WORN CAMERA FOOTAGE SAYS:

One of the officers noted at the very end of his offense report that he was wearing and used a body worn camera.  The body camera footage reflects that the officers are driving down a dead-end driveway with two rows of parking spaces late in the evening while the park was full of visitors.  The park their marked patrol car directly in front of the car my client was in, effectively boxing the car and its occupants in.  The Mobile Data Terminal states that the officers initiated a self-initiated law enforcement activity.  The body camera is not turned on until both suspects have been taken out of the car and are cuffed.  The cop wearing the body camera then searches the passenger compartment of this darkly tinted car.  First, he finds an empty plastic bag on John’s seat.  Next, he finds a roach in the passenger side of the ashtray leaning towards John.  Then, he finds a roach deep inside the passenger side of the cluttered center console.  The officer then searches Jane’s purse, which was in the rear passenger side seat, where he finds nothing linking Jane to the crime.  Next, he walks around the rear of the car and does not mention anything about the smell of marijuana coming from the trunk.  He then searches Jane’s seat, where he finds nothing linking Jane to the marijuana.  Finally, the officer takes the key out of the ignition and opens the trunk.  About 10 seconds later he remarks that it smells like weed.  Although conveniently not on camera, the officer the opens up a men’s shoe box where he finds a many small plastic bags full of marijuana inside a large plastic bag.  Once the officer finds this weed, he says, “Oh fuck yeah!”
The cop then asks Jane whose car it is, she says its John’s.  The cop then asks a few questions and realizes that Jane is sober as a gopher.  The cop then turns his body camera off.  The cop then speaks to the obviously high John, and turns his body camera on.  The cop then talks to Jane, and turns his camera off.  The cop then talks to John, and turns the camera on.  The cop then turns his camera off before transporting Jane and John to jail.
Viuve Body Worn Camera Used By HPD
Viuve Body Worn Camera Used By HPD

WHAT I LEARNED FROM THE BODY CAMERA FOOTAGE:

First, I learned that the police officers lied about the nature of their encounter.  Clearly, based on the video, there was nothing consensual about the encounter as the State argued at the motion to suppress.  Under State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008), a police-citizen encounter implicates fourth amendment protections in a totality of circumstances test where the officer makes a show of authority that a reasonable person would not feel free to ignore.  In Garcia-Cantu, the officer boxed in the suspect by paring his patrol car about 10 feet away from the suspect’s car on a dead-end street and shining his spotlight on the suspect vehicle.  In my case, the cops parked their car about 10 feet in front of the front bumper of the car my client was in, a car that was reversed back up to the curb, in a dead-end parking lot, before both officers exited their vehicle with their hands on their guns, walked to each side of the car and made authoritative orders.  Without the body camera footage, it was unlikely that I would have filed a motion to suppress based on what my client told me, and what the offense report said.  It was even less likely that I would win the motion to suppress.
Second, I learned that the officers lied in their offense report about two blunts being in plain view and easily within my client’s reach.  The blunt in the ashtray was within my clients reach, but it’s arguable whether it was in plain view, considering the officers could not see it before they entered the car.  The blunt at the bottom passenger side of the cluttered center console was clearly not in plain view, nor was it easily accessible by my client.
Screenshot (5)
Houston Police Department Body Camera Footage Shows That My Client Was Unlawfully Detained Under Garcia-Cantu
Houston Police Department Body Camera  Footage Shows That One Blunt Was Not In Plain View
Houston Police Department Body Camera Footage Shows That One Blunt Was Not In Plain View
HPD BodyCam Footage Shows That Second Blunt Was Not In Plain View
Third, at no point during the video footage could we see any loose tobacco outside John’s door.
Fourth, the office claimed that he smelled the strong odor of marijuana emanating from the trunk, but not once did he note the smell, despite narrating everything else in the video, until 15 seconds after opening the trunk.
Fifth, I learned that the officer turned off his camera essentially every time he spoke to Jane, but turned it on every time he spoke to John.

HOW TO MAKE THE MOST OF BODY WORN CAMERA FOOTAGE:

First and foremost, you need to get the police department’s body worn camera policy.  I was the first lawyer in Texas to get the Houston Police Department Body Worn Camera Policy.  A policy, even draft policy, creates the rules that officers must follow.  Humans rely on rules to establish what is right and wrong.  If we can get juries to understand in simple terms that the officer had a few rules to follow that are designed to protect the constitutional rights of members of our community, and that the police violated these rules, then the members of our jury will feel less comfortable with the officer’s actions because the police might just as easily violated their rights.
Getting the body camera policy was not easy, and don’t expect it to be.  The first problem I ran into was that the prosecutor did not turn over the body camera footage until out first trial setting.  I knew it existed because it was noted on the offense report, but I would suggest requesting body camera footage when you file for 39.14 discovery request at your first appearance.
The next problem I ran into was a Chinese wall.  The State not only refused turn over the Houston Police Department Body Worn Camera Policy, but the state also refused to admit the policy existed.  The state’s excuses ranged from there is no policy, it’s not a final policy, it’s a draft policy, the policy was not applicable, and you’re not entitled to the policy.
I filed the court’s standard discovery order, which the judge signed.  I made oral requests, and I made written requests all to no avail.  Finally as the trial was fast approaching, I filed an updated 39.14 Michael Morton Act request for “Any documents or reports related to Houston Police Department’s use of Body Worn Cameras, including, but not limited to, any HPD circular, training material, educational material, draft materials, and final policies.”  On the same day, I also filed a Texas Public Information Act Request with the Houston Police Department, and a Subpoena Duces Tecum for the same information.
The prosecutor again ignored my discovery request.  When confronted with why she wouldn’t turn it over, she said the policy doesn’t exist.  Little did she know, I was holding the policy in my briefcase.  The Houston Police Department objected to my TPIA request.  Surprise. Surprise.   However, the good civilian Custodian of Records at HPD complied with my subpoena.  Of course, it took the additional threat that I would subpoena the Chief of Police to testify as to why his department would not turn over the policy to the public, during the public input stage, but hey, you gotta do what you gotta do, and I was prepared to examine him.

WALLAH, THE HOUSTON POLICE DEPARTMENT BODY WORN CAMERA POLICY:

Once you have the body camera policy, you have to know how to use it.  You have to know how you are going to get it into evidence.  Once you figure that out, you get to know the policy like the back of your hand.  The better you know the policy, the more clear, concise, and effective your rule-based question can be.  The following is an example of my cross on the body camera policy.  The purpose of this cross is to establish why body cameras are used and rules on how they are supposed to be used.  Once the officer agrees to each rule, you can expose that he did not follow the rules he agreed to follow.
Policy Rule 1:  Houston Police Department is committed to protecting the constitutional rights of all people.
Police Rule 2:  Houston Police Department uses Body Cameras to collect the best evidence of every encounter between officers and the public.
Policy Rule 3:  Houston Police Department uses Body Cameras to preserve the best evidence of every encounter between officers and the public.
Policy Rule 4:  Houston Police Patrol Officers assigned Body Cameras must record all law enforcement activities.
Fact 1:  Body Cameras accurately reflect events.
Fact 2:  Body Cameras accurately reflect interactions.
Fact 3:  Body Cameras accurately reflect evidence.
Fact 4:  Body Camera footage is the best evidence of what happened.
Rule 1:  Before receiving your Body Camera, you had to learn how to use it.
Rule 2:  You went to a two hour course to learn how to use the Body Camera.
Rule 3:  You also learned the Body Camera Policy.
Rule 4:  You received a copy of the Body Camera Policy.
Rule 5:  Before being issued your Body Camera, you had to pass a test to demonstrate you knew how to operate the Body Camera.
Rule 6:  Before being issued your Body Camera, you have to pass a test to demonstrate you knew the Body Camera Policy.
Rule 7:  You passed your test.
Rule 8:  On the date of this arrest, you knew how to operate your Body Camera.
Rule 9:  On the date of this arrest, you knew the Body Camera Policy.
Rule 10:  The Body Camera Policy lists rules that you must follow when using your Body Camera.
Rule 11:  Officers are responsible for the Body Camera.
Rule 12:  Officers must check the Body Camera at the beginning of their shift to make sure it is working properly.
Rule 13:  Officers must check at the beginning of their shift to make sure the Body Camera has a sufficient charge.
Rule 14:  Officers must notify their supervisor any time a recording may be evidentiary.
Rule 15:  Officers must document the existence of a Body Camera video in their incident report.
Rule 16:  Officers must immediately report any malfunctioning equipment to a supervisor.
There a rules in the policy that state when you must activate your Body Camera.
Operation/Activation Rule 1:  If an officer discovers his camera is defective, the officer must immediately notify his supervisor.
Operation/Activation Rule 2:  Officers must begin recording with their Body Camera when they arrive on the scene for any call for service.
Operation/Activation Rule 3:  Officers must begin recording with their Body Camera when they self-initiate law enforcement activity.  (See squad car’s MDT to determine if and when officer began self-initiated law enforcement activity.)
Operation/Activation Rule 4:  Officers must begin recording with their Body Camera when they initiate a traffic stop.
Operation/Activation Rule 5:  Officers must begin recording with their Body Camera when they initiate a pedestrian stop.
Operation/Activation Rule 6:  Officers must begin recording with their Body Camera when they are flagged down to take law enforcement action.
Operation/Activation Rule 7:  Officers must begin recording with their Body Camera when they detain a person.
Operation Rule/Activation 8:  Officers must begin recording with their Body Camera when they attempt to detain a person.
Operation/Activation Rule 9: Officers must begin recording with their Body Camera when they arrest a person.
Operation/Activation Rule 10:  Officers must begin recording with their Body Camera when they when they are likely to arrest a person or take any other law enforcement action.
Operation/Activation Rule 11:  Officers must record all searches of people.
Operation/Activation Rule 12:  Officers must record all searches of vehicles.
Operation/Activation Rule 13:  Officers must record all searches of buildings.
Operation/Activation Rule 14:  Officers must record all searches of places.
Operation/Activation Rule 15:  Officers must record all pursuits.
Operation/Activation Rule 16:  Officers must record all transports of detainees of the opposite sex.
Operation/Activation Rule 17:  You may only violate these rules, per the policy, if it is immediately necessary to ensure your safety or the safety of others.
There are rules in the policy that state when you are allowed to turn the body camera off.
Operation/Deactivation Rule 1:  Officers must ensure that Body Worn Cameras are recording during the entire potential law enforcement activity.
Operation/Deactivation Rule 2:  The Body Camera must record until the incident is over.
Operation/Deactivation Rule 3:  An incident is over when all arrests have been made and the arrestees have been transported from the scene.
Operation/Deactivation Rule 4:  An incident is over after all witnesses and victims have been interviewed.
Operation/Deactivation Rule 5:  An incident is over after the officer has left the scene.
Operation/Deactivation Rule 6:  An incident is over after the citizen contact is complete.
Operation/Deactivation Rule 7:  An incident is over, if an arrestee is of the opposite gender, once the arrestee has arrived at jail.
Operation/Deactivation Rule 8:  If an officer is flagged down by a citizen, the officer must record the interaction, but may stop recording only if the citizen wishes to share confidential information.
Operation/Deactivation Rule 9:  Officers may stop recording when conferring with other personnel regarding the handling of a situation.
Operation/Deactivation Rule 10:  Officers may stop recording at the scenes of extended incidents.
Operation/Deactivation Rule 11: Officers may stop recording when no law enforcement action is occurring.
Operation/Deactivation Rule 12:  Any time and officer stop recording, he must audibly note the reason for termination.
Operation/Deactivation Rule 13:  Any time an officer stops recording for any reason, the officer must turn the camera back on immediately when the circumstance that caused the officer to stop recording has passed.
Recording/Documentation Rule 1:  The recording of a criminal incident shall be treated as evidence.
Recording/Documentation Rule 2:  Officers must record a chain of evidence/custody for all evidence.
Recording/Documentation Rule 3:  Officers must not alter, tamper, or destroy evidence. (Break into three questions).
Recording/Documentation Rule 4:  Officers must note in their offense report if he recorded an incident.
Recording/Documentation Rule 5:  Officers must note on all relevant forms involving the incident that there is body camera footage.
Recording/Documentation Rule 6:  All recordings in criminal cases must be retained for the period set by the statute of limitations.
The aforementioned questions serve several purposes. First, they establish that the officer was trained in how to use the Body Camera.  Second, they establish that the officer was trained in the Body Camera Policy, and knew how to follow the policy.  Third, they establish the officer knew the rules on the date of your client’s arrest.  Fourth, they establish that the officer knew when to turn on the camera.  Fourth, they establish that the officer knew when to turn the camera off.  Fifth, they establish that the officer knew how upload and store the Body Camera video.  Fifth, they set you up for a spoliation instruction. Sixth, most importantly, you are committing the officer to his testimony.
The officer must agree to each of these rules.  If the officer does not agree to each of these rules, you can impeach him and at least try to get the actual policy into evidence.  After getting the officer to agree to each of these rules, apply the facts of your case to the rules he agreed that he was supposed to follow.  There is a good chance that the officer did not follow his own rules, which is good for you.  First, hopefully you asked the jurors in some manner during voir dire if they expect officers to follow their own rules, policy, and procedure.  Second, you can use the testimony to support your theme of a rush to judgment, bad police work, your client’s rights were violated, or any other.  Third, these questions will help you seek to get a spoliation instruction.
In my case, the officer broke several rules.  The officer began recording later than he was supposed to.  He stopped recording sooner than he was supposed to.  He never audibly noted why he turned off the camera.  He only recorded his interaction with John, but not Jane.  He did not record the transportation of Jane to jail.  The video came in three disks.  It was clear that the officer wanted John to rat on Jane once he realized Jane was sober and John was not.  It was clear that the officer chose not to record the entire law enforcement activity and that he therefore tampered with evidence.
Ultimately, the Body Camera video helped me win my motion to suppress by establishing that my client was sober and there were no affirmative links.  The judge disagreed that my client was detained, but body camera video enabled me to lay an accurate record for appeal.  I would have loved to have heard what the jurors thought about the way in which the body camera was used, but I am more than happy to get a victory before that point.
We, as lawyers, need to use Body Camera footage to our advantage in every case possible.  More often than not, body camera footage isn’t going to show that an officer killed someone.  But in the same token, body camera footage will show that a cop lied in his offense report or that he violated the defendant’s Fourth Amendment rights to be free from unreasonable searches and seizures, or that he treated your client like trash. Take the time to carefully review your body camera footage.  This technology will help us identify the bad cops, get more dismissals, win more motions to suppress, and hear more not guilty verdicts.

Monday, July 27, 2015

DRUG DWIs: YES YOU CAN GET A DWI IF YOU ARE HIGH ON DRUGS

Appearing on TV following a big WIN

DWI: DRUGS

Driving While Intoxicated is one of the most prosecuted crimes in the State of Texas.  Most people think that you can only be charged with DWI if you have been drinking alcohol.  Well, those people are wrong.  You can actually be charged with DWI if you are intoxicated on literally any substance, including, marijuana, ecstasy, mushrooms, mescaline, Adderall, cocaine, LSD, meth, amphetamines, caffeine, tree bark (yes, tree bark a.k.a. DMT), Molly, MDMA, ephedrine, mescaline, Ritalin, acid, and many, many more.

But wait, how can I be arrested for DWI if I don’t have a blood alcohol content (BAC) of .08 or higher?  A person can be convicted of DWI if he has a BAC of over .08, he has experienced the normal loss or his mental faculties, or he has experienced the normal loss of his physical facilities. 

At the moment, most officers do not have the knowledge, experience, and skill to determine whether someone is intoxicated on a drug, which is why if the police determine something has you intoxicated and they have ruled out alcohol, but they cannot determine exactly what messed you up, you will be arrested and taken to jail to meet with a drug recognition “expert,” or “DREs,” and have your blood drawn.  The good news is that these drug recognition “experts” are not really experts.  They went to a two week class, and believe they are qualified to be doctors.  At best, drug recognition “experts” are drug recognition “evaluators,” “eye witnesses,” “estimators,” and paper pushers.  These people are not doctors, and if I have anything to do with it, the judge will not allow the DREs to be called experts at your trial.

Think about this.  What happens when people smoke marijuana?  They are cautious.  Many actually become safer drivers.  What happens people take Adderall, or other “study drugs?”  The get focus of a puma and reaction speeds of a cheetah.  Science has even showed that the use of amphetamines improves driving abilities.


At the end of the day, DWI’s are serious business that can seriously affect your life.  You need a Texas Drug DWI Trial Lawyer that focuses his practice on drug crimes and drug DWIs. Trust me, the cost of hiring the wrong DWI drug lawyer will way outweigh the cost of hiring the right DWI drug lawyer. 

Stay tuned for more to follow.


Friday, July 24, 2015

Your Right To Remain Silent - A Guest Blog Post By Austin-Georgetown Attorney Terrance Marsh

What does the Right to Remain Silent really mean?

How many times have you heard someone say "I'm going to plead the Fifth." If you've heard that before, they're referring to our U.S. Constitution and the Bill of Rights. The Bill of Rights is the first 10 Amendments to our U.S. Constitution. These rights protect us from the government (police are part of the government). Our right to remain silent is written in the Fifth Amendment to the U.S. Constitution. There are many rights packed into the 5th Amendment. Here are the exact words:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- 5th Amendment to the U.S. Constitution

Why is the right to remain silent important?

The part referring to the right to remain silent is in bold, and underlined above. The right to remain silent is so important because it protects you from being forced to say things, write things, or confessing when being questioned by police. It is a shield between you and the government (police are part of the government)!

Being compelled in a criminal case as a witness against yourself is the fancy way of saying that the government can't force you to testify against yourself or self incriminate. Being forced to testify against yourself pretty much explains itself. If you are charged with a crime, the government or the prosecutor can't force you to testify.

Over time the Courts have said that our Fifth Amendment right to remain silent includes contact and questioning with police. Police are allowed to go up to you and talk to you on the street, or in your car. However, you don't have to answer the questions police ask you other than identify yourself. Your right to remain silent includes all police questioning - including confessions. Never confess to anything and especially don't put anything in writing when the police question you. I'm a big fan of examples so let's use an example.

Police Questioning and The Right to Remain Silent

A few months ago I had a client named John who was arrested because police suspected him of dealing drugs. Police picked John up with a Warrant of Arrest at his home and brought him to the station for questioning. Police read him is Miranda Warnings. If you've ever seen an episode of Cops or Law and Order you've heard this a millions times:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”



The moment the police went to John's house, knocked on the door, and began asking John questions other than his name, his 5th Amendment right to remain silent had kicked in. Why?

John's right to remain silent kicked in because the police asked John questions after he identified himself. John could have told police "I don't want to talk to you or answer any questions" and that would have been perfectly legal. As a matter of fact, that's exactly what I would have advised John to do if I was sitting next to him. The police are allowed to ask as many questions as they'd like and as many as you'll keep answering. Luckily, John didn't answer very many of the questions police asked. More importantly, the police didn't question John further or try to get a confession out of him. John kept his mouth shut, and because of that his felony drug charge was dropped  down to a misdemeanor.

Summary

The true meaning of the right to remain silent is for people to be free from government (police) questioning. Never answer questions from police unless the question is to identify yourself. Miranda Warnings are given to you by police so that you are aware it's your right not to speak with police. Knowing the meaning of the right to remain silent can help protect you from past or future criminal charges that police investigate. Always follow the law.

But just remember, don't make the cops' job easier than it has to be and if nothing else, don't do their jobs for them. Remember the meaning of our right to remain silent.


Wednesday, July 22, 2015

HUMAN TRAFFICKING PROSTITUTION CASE DISMISSED

Ya'll ready for some flim-flam, poppycock, malarkey hogwash?  Get this...



My client is a pretty, young Hispanic lady who enjoys having sex for money, allegedly.  She is working at a 'cantina' one night, racking up notches on her belt, allegedly, when two brutes walk in the door in their finest boots (okay this part is made up, although this is a real thing).


The two gentlemen offer to buy my client a cerveza.  They then try to get her to agree to have sex with them for money.  Little does my client know that these men are clandestine operatives of the police force, and on this particular night, the FBI, Harris County Sheriff, HPD, ICE, and several other 'law enforcement' organizations are about to execute a big human trafficking bust.  In layman's terms, the two guys were VICE cops.  Cops that live in the underworld with their head above water. 

Yeah.  Right.

These cops and the prosecutors that work for them want you and I to believe that they don't drink the beer they buy, and instead empty the bottles in the urinal.  The weird thing is that I never hear the bottles being emptied.

So let's jump to the chase.  My client ends up getting busted along with several other girls and alleged pimps.  She is charged with prostitution and her case is assigned to the human trafficking division. They are a group that, at best, gives tough love in exchange for favorable testimony.

The Harris County District Attorney Office Human Trafficking Division is also that group that runs SAFE (Survivors Acquiring Freedom and Empowerment) Court, which is a pretrial intervention court program for girls with prostitution charges that  are between the ages of 17-25, arrested in Harris County, and charged with prostitution, for starters.   The Harris County Human Trafficking Division knows next to nothing about their own program.  They are rude and lazy.

I told the ADA from the get-go that my client is not a victim of human trafficking, she was not forced to have sex, and she was not forced to have sex for money.  The human trafficking game involves lots of disbelief.  The ADA does not believe my client.  I try to not believe my client at first.  I want her to be consistent.  I become convinced.  The ADA still does not believe. 

Let's talk about what going to court looks like.  My client shows up on time for her docket (her docket time, not mine).  She then waits.  I show up, and we wait.  We wait and wait and wait.  What are we waiting on?  We are waiting on the human trafficking prosecutor.  Where is she?  She tells me she is running from court to court.  Of course, I frequently see her having conversations with her girlfriends in the hallway.

This going on for hours every month.  Not only that, but the ADAs are kicking my client back to the home court prosecutor and then back to the human trafficking division.

Finally, FINALLY, after 6 months they finally get my client into an evaluation to see if she will be accepted into SAFE Court.  My client shows up and does what she is supposed to do.

At the next setting, the ADA shows up THREE HOURS LATE.  In the interim, I let her know that I am waiting.  She tells me she is on her way.  An hourish later I email her to let her know I am still waiting, and it's incredibly rude to me and my client to make us wait all this time every single month.

She shows up sits down and makes a giant shitshow.  She tells me my client didn't show up to her meeting, which she did.

Next month the ADA shows up and says my client wasn't approved for the SAFE Court program, and she was.

The next month, the ADA drops off a dismissal form and leaves without saying anything.

I am pretty sure she dismissed the case because she wanted to save her ass after I made a stink and the coordinator and probation were backing me up.



I guess we will never know.  Case Dismissed.


Possession of Marijuana Jury Selection in Texas

Houston, we have a problem.

The problem is that tons of people are arrested annually in Texas for the crime of Possession of Marijuana, but very few people are choosing to go to trial.

Making a TV appearance after winning a Motion to Suppress and Not Guilty in a Possession of Marijuana Case

There are many reasons why one might not take a Possession of Marijuana case to trial:

  1. Defendant just doesn't care about his future life and job prospects.
  2. Defendant was offered Pre-Trial Diversion, is actually guilty, will admit to being guilty, will apologize, and will successfully complete a probation program.
  3. Defendant was offered First Chance Program in Harris County and will do the above.
  4. Defendant is afraid of a conviction or doing time.
There are also many reasons why one might take a Possession of Marijuana case to trial:
  1. Defendant is innocent.
  2. Defendant is not guilty (there is a difference).
  3. Prosecutor cannot prove the case beyond all reasonable doubt.
  4. Defendant was illegally searched and seized.
  5. Defendant thinks jury will 'nullify' based on the charge.
These are just a few reasons why a person might take or not take their case to trial.  I am of the personal opinion that just about every Possession of Marijuana case needs to be set for trial.  If we set all these case for trial, we will break the system and there will be few charges for Possession of Marijuana.

So, let's say you decide to take your weed case to trial.  Great.  What happens next?  Well, first you will decide whether you want to go to the judge or to the jury for punishment.   This is your decision, but I will help you make it.  What determines you punishment 'election' is basically the judges reputation and the facts of your case.  I will almost always recommend going with the jury for punishment in the event you are elected.

Next, we will do jury selection, or voir dire.  Prosecutors love to get up and teach the jury a lesson in French and philosophy about how 'voir dire' means 'to tell the truth' in French, and that jury selection is really 'deselection.'  Before the DA gets to talk to the jury, the judge will, and the judge will tell the jury panel (the venire) all about himself, his court, and some basic Constitutional rights, such as the presumption of innocence, your right to not testify, the burden of proof, and the useless 'one witness rule.'

Next, the prosecutor will do his or her best to ask questions and get answers.  The problem is that they are more like middle school algebra teachers than people with personality, generally.

Next it is my turn to ask the jury questions.  I always like to start by letting the jury panel know a little about myself, because we get to know so much about them.  I think the jury finds it welcoming that I am a human too, with good and bad things going on in my life.  It really makes them comfortable about sharing more personal feelings and opinions.  

This Slide Makes the Jury All Warm and Fuzzy and Talkative


It's worth noting, that many criminal defense attorneys do not use PowerPoints for their jury selection.  I use them because (a) that's how people learn best and (b) it helps keep me on track without using notes.

I immediately tell them why WE are at court.  ALWAYS ALWAYS ALWAYS the jury was dragged into court by the government because you and I disagree with the government's allegation that you possessed a usable quantity of marijuana on a given day in a given location.

I will then tell the jury why THEY are in court.  The jury is in court to decide the truth.  There is no arguing with these two points.

From there, we may do an example or ask a question to get the jurors talking.  We want to get them thinking about situations where everybody else was doing something, but they chose not to do it, for example.  Or maybe about a time where they were near someone who was in possession of something, but they were not in possession of that same property.

Once we get the brain juices flowing, we talk about your constitutional rights as a defendant.  The goal here is to find jurors to challenge for cause.  In any criminal trial, the court, prosecution, and defendant are able to strike any number of jurors if they are unable able to follow the law and give the defendant (and somehow the state) a fair and impartial trial.  In other words, they are biased and can't overcome their bias.  I am usually able to identify a few jurors that the judge or DA didn't identify who cannot give my client a fair trial.

Next, we break down the law that applies.  So, for a Possession of Marijuana case, I want the jurors to explain to each other what it means to knowingly or intentionally do something.  I want the jurors to explore what it means to exercise possession, which means care, custody, control, or management over an object.  

Throughout jury selection, I am also using my proposed jury charge to get ideas of how the jury might rule on specific jury charges such as destruction of evidence, 38.23 motions to suppress, and so on.

Finally, after making our challenges for cause, I sit down with you and my co-counsel (which you will usually get free of charge)  and determine who we want to strike.  In a misdemeanor case, both sides can 'strike' or get rid of 3 jurors for any reason or no reason at all.  Well, actually, the State cannot strike a juror for race or gender based reasons.  I will talk about challenges to this conduct (Batson Challenges) in a future blog post.  
In my last three juries, I got the exact jury I wanted.  I also got the exact result I wanted.

Until next time, 

Take Your Case To Trial

Tuesday, July 21, 2015

POSSESSION OF MARIJUANA NOT GUILTY... SORT OF... CASE DISMISSED MID-TRIAL

This is a week late, at least.



Where to start...

Maybe I should start off by saying, thank you. 

 Thank you to the Harris County District Attorney and minions for not dismissing a case that never should have been charged in the first place.

Thank you. Harris County Court 14 and Judge Fields for hauling my client to court for 11 trial settings.

Thank you to the court for finally allowing me to try my case on the one year anniversary of my client's wrongful arrest.

Thank you to my client for sticking with me, even though she was incredibly frustrated and could not understand why I could get the case dismissed. 

Thank you to Judge Fields for following the law and granting my motion to suppress.

For those of you that have read some of my prior posts, this is my possession of marijauna case involving an overzealous cop and his failure to follow the HPD bodycam policy.

Let's recap:  My client was sitting in the driver seat of a parked car at a park in Acres Homes. Her friend was sitting in the passenger seat.  Both doors were wide open.  The cops, which a Juror referred to as "Officer Handlebars" due to his ridiculous stylish mustache, were conducting a "park check."  In other words, they were out to do warrantless searches that frequently violate the Fourth Amendment. Park searches are a treasure trove of constitutional violations, and I wish lawyers did more to challenge them.  Needless to say, if you have been arrested for drugs or weapons in a public park, CALL ME.

So the cops allegedly see a pile of loose tobacco outside the passenger door.  The cops then park their cop car right in front of the car my client was in, and boxing her in.  The cops then see the codefendant reach towards the center console and place something there.  The cops then exit the car and when they get right up next to the car they smell the week.  One cop puts my client in handcuffs while she is still sitting in the car.  The cop then forces her to stand against his front bumper in the searing July heat.  The cops then search the car and find a joint in the codefendant's side of the ashtray leaning towards the codefendant (the joint they saw the codefendant place).  They then claim to have found a second joint in plain view.  Well, the bodycam (which the police did not want me to have) showed that the second blunt was deep inside the codefendant's side of the center console.  The cop then searches my client's purse, without PC, and finds nothing linking her to the marijuana. The cop then searches the seat where my client was sitting and finds nothing linking her to the marijuana.  Finally, the cop searches the trunk.  Funny thing is that he says in the offense report that he could smell weed form outside the vehicle, but his body camera reflects otherwise.  The body camera shows the cop opening the trunk and then saying "smells like weed in here" 15 seconds later, and then saying "oh fuck yeah" when he finds the weed.  The cop then asks my client whose car it is and she says it is the codefendants.  The cop then turns off his body camera every time he talks to my client, including when she denied it was hers, and the turns it on when he talks to the obviously and admittedly high codefendant to get him to rat on my client.  Didn't work.

Nine months later we have a out first trial setting.  Two trial settings later, I finally get the body camera footage. Thank the good lord for that.

At the 10th trial setting, my client was told she did not have to show up unless we were called to trial.  Of course, we were called for trial, weather was horrible and she showed up 2 hours later, not one hour as she told the judge she would.  Lo and behold, we were given the best looking, most diverse, youngest jury panel in the history of Harris County.  It was so defense friendly, the judge wanted to take a picture with them.  OF course, though, because my client was late (DONT BE LATE), the jury was sent home.

We finally went to trial, picked a jury, got the jury we wanted, gave my opening then the cop got on the stand and I filed my motion to suppress.  Judge Fields disagreed with why all of the marijuana should be suppressed (I was right), but he suppressed all of the weed anyways under affirmative links (not permissible at a motion to suppress, but ok).  All that matters is that I got the not guilty.  Also, being on TV was pretty cool. Make sure to check back and read the next few posts that will go more in depth about my jury selection method and the Houston Police Department Body Worn Camera Policy (PS I'm the first in the county to have it).

Wednesday, June 24, 2015

Picking a Jury in Harris County on Resisting Arrest Charges as a Second Chair

The adage is that you win trial in jury selection.

I meandering into Harris County Court 14 the other day expecting to pick a jury for my client's case. It was the ninth trial setting, after all.  Instead, the court chose to go with an a resisting arrest case on its first trial setting. 

No Rhyme.  No Reason.

I just so happened to know the lawyer who was defending the young Puerto Rican accused of resisting arrest.  The poor kid was jumped by a cop and sent to the hospital for some stitches and bruised ribs before he was booked in jail.  Of note, the 5'5 cop who was clearly inflicted by Napoleon Syndrome, was working an extra job at twin peaks.  Knowing the lawyer, and having helped him before in a DWI trial, I helped him pick the jury.

I knew nothing about the case until about 15 minutes before jury selection, but what I did know was my obligation as a second chair.  For any new lawyers that may stumble upon my blog, a second chair is a lawyer who assists another lawyer during trial.  Sometime second chairs take the role of observer and whisperer of ideas.  Other times, second chairs may have the opportunity to conduct examinations and arguments.  I have second chaired murders and sexual assaults to DWIs and simple assaults.  

No matter what, when second chairing, you have to be actively participating by seeing what there is to be seen, hearing what there is to be heard, and sharing your observations and ideas with the first chair.

In this particular resisting trial, my job was to determine who in the jury panel was ineligible to serve on the jury due to a bias or prejudice I identified two issues early on.  First, officer credibility. Second, how might an officer act after he worked a long shift on the job for HPD, then immediately worked a second shift as security.  The first chair, Paul Kendall, had the rest set up perfectly.  

I took tabs on who could not serve on the jury, and the judge agreed that I got them all correct.

As Paul was about to finish his voir dire, he asked me if there was anything else he needs to cover. I said, "Yes, ask the jury how an officer might feel after working his main job then going directly to his extra job.  Ask the jury what might effect the cop's judgment."  He asked and the answers followed. In fact, the first juror to speak said the exact word I was looking for, "cranky."  It was all gravy from there.

We got the 6 jurors we wanted on the panel.  Hell, we even got the guy who was previously convicted of resisting arrest on jury!

It certainly helped that Napoleon Dynamite testified it was as if his commands (to leave the parking lot) fell on deaf ears, because, well, the client was partially deaf.



Two Words:  Not Guilty.  

Congrats, Paul.

Sunday, June 21, 2015

When You Try To Help A Cop And...

He is a total jerk.

I was driving down a dark highway in Cypress when I noticed a bunch of flashing emergency lights.  I slowed down, but I couldn't tell if the center lane was open, and I have bright Xenon headlights.   As I get close to the flashing lights I see some flashlights.  It was two cops.  They were telling me to turn around.

I kindly say, "Officer, I think the Sheriff's car in the center lane needs to be parked in the lane like the others, not parallel. I could not see the car at all."

Cop replies,  "We're just a a bunch of dumb ass cops.  Get the hell out of here!"

What prick.

All I was trying to do was keep the officer's safe, their cars safe, and the public safe.

Cops, if you can't handle the stress of your job, make the world a safer place and quite.

Thursday, June 18, 2015

Assault Family Violence Case Dismissed

While I'm in the groove, I might as well share my latest dismissal with you.   I don't want to get into the details, but the allegations are that it starts with your typical booze-filled evening and ends with a few hits to the face of the driver.  While the car was moving.

The complainant, which is the legally accurate term for a "victim,"  pulls off the highways.  Client allegedly take the car keys and chunks them over a fence.  Complainant flags down officers who slap cuffs on my client and throw her in the slammer, and leave her there for WAY TOO LONG.

So, this is your typical misdemeanor assault case.  There are some relatively bad allegations, o independent witnesses, no eye witnesses, and bad presumptively bad police work.  

What does a criminal defense lawyer do in this scenario.  First, I have a thorough interview with my client at my office, which sometimes includes a scene reenactment so I can see first hand, as good as possible, what went down.   Next, I get and review the offense report.  I don't just skim it an make a recommendation like many lawyers.  I go through with a fine tomb comb.  No mistake, error, or misstatement is to small to matter, at least not as a starting point.  Next, I reach out to the complainant and attempt to speak to him or her.  

If possible, I will get a sworn affidavit recounting the events. Why go through the trouble of getting a sworn affidavit?  Well, the rules of evidence determine how a case can be tried.  A sworn affidavit is made under oath and threat of perjury.  That means that if the person lies under oath when giving the affidavit, that person may be subject to criminal charges for perjury.  The promise to tell the truth and threat of criminal charges makes the document more credible.  Finally, if the witness gets on the stand and testifies differently, I am able to impeach the witness.  What does it mean to impeach a witness?  Impeaching a witness is attacking the credibility of a witness.  Being able to properly impeach a witness is a very important skill that most lawyers do not actually know how to do. Properly.   I do plenty more than this when preparing for a case, but I will leave it here for now.

The good news is that my client's case was dismissed, and she can move on with her life, which includes getting an expunction and clearing her record.

Wednesday, June 17, 2015

The Ballad of Marijuana Defendant

The Dope Defense Attorney


This case has become unreal.  Just unreal. My client was charged with possession of marijuana.  I don't want to give away too much here because I know the prosecutor, who I believe to be lovely and reasonable in her soul, has at the very least looked up body cameras in the local news.  In fact, I think she was kind of impressed that I was quoted in the Houston Chronicle about this particular case

Note:  The Pic Is Not Me Or My Client

Credit where credit is due.  She researched the matter, and dare I say me (although I doubt it), and then tried to get any reference to the article excluded from trial through a motion in limine.  

So, just why has this case become unreal.  Harris County Court 14 works in a peculiar way.  Clients only have three or four court dates, spread out over about 6-9 months before their first trial setting.   Personally, I like this set up.  Your client doesn't get pointlessly dragged into court, and I don't find going to court every month for the same case a useful exercise for attorneys either.  In theory, there should be more cases being dismissed in Court 14, and also more cases going to trial due to the scheduling.  The problem is that cases are not actually being dismissed at the rate they should be.

Well I can tell you what, a whole ton of cases are set for trial in that Honorable Court everyday. While I'm not important enough for court staff to read my blog, I still take a risk by saying that showing up for trial TEN TIMES is inexcusable. It is a war of attrition to get the defendant to plead guilty by tearing away at their finances, will power, and soul.  

My client is innocent and she will not plead guilty for something she did not do.  Hell, there are defendants who may be guilty that want to go to trial, but feel like the government can't make there case, and that is their constitutional right.

Back to the topic.  At my client's 9th trial setting, yes ninth, my client was told to return the next day (third day in a row), only if the judge called her case to trial.  In other words, she didn't have to be at court like the rest of the defendants.  So, I showed up in her stead. Judge Fields, who is truly a likable and well thought judge, calls my client's case to trial.

Ok, so I don't announce that I am ready.  I don't have witnesses and I don't have my co-counsel with me at that exact moment.  The was kind enough to say,  "Counselor, you are great.  You know what you are doing and know the facts of your case very well.  You don't need co-counsel.  You don't even need to go get your file."  As flattering as his statement may be,  commercial pilots don't fly solo, and neither do I.  He reaffirms that my case is going to trial, so I run outside and call my client.   Like the rest of Houston, she had trouble getting downtown in the tail end of a tropical storm.  Too much trouble.

Meanwhile, we have a GREAT jury panel.  I am talking about young and diverse.  It was a beautiful thing.  Two hours later, the judge tells the jury to go home. Judge Fields even proclaimed he had never seen such a good looking jury for the defense and jokingly said he wanted to take a picture with them. The times, they are a changing.  However, My client finally arrives and Judge Fields graciously and justly did not revoke my client's bond because she had been on time the previous 9 trial settings. 

I was so ready to try this case.  Witnesses would have been great, but I won a good couple of battles during pretrial motions, not least including getting a spoliation instruction granted, should I present evidence warranting the instruction, which was likely to happen.  I saw Mike DeGuerin in the elevator and got some words of advice from that legend, and I had some great attorney''s helping me at trial.  The stars were aligning.  It's a shame my client wasn't on time.  

Lesson learned, don't give your client's the chance to mess things up, because they will, and at the worse of times.