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.

Unlawful Carrying Of A Weapon Motion To Suppress Post-Rodriguez

I was almost there.  I was so close that I could feel it.  I could touch it.  I could see it.  I could see the Montgomery County Judge saying, "Motion To Suppress Granted," and the State of Texas saying "Judge we will file this Motion to Dismiss."  However, it wasn't to be.  It wasn't to be because we worked the case us so good that the Montgomery County prosecutor dismissed both cases in exchange for my client forfeiting his handgun.

For the record, I would not have taken that deal under the circumstances, that's how confident I was in the facts of the case, my legal research, and that I would not let the government steal my gun (if I had one).  However, as a client-centered lawyer, my job, my obligation is to inform my clients about the procedure, the potential courses of action, and the potential consequences of each course of action.  In this case, the dismissals were all he wanted.

So, let's rewind to May of 2014, in a little speed-trap of a town called Patton Village.  My client was driving a car his mother bought him for graduation north on highway 59 to visit his mother in Mississippi.  He was traveling in the left lane, allegedly, without passing other vehicles.  A Patton Village Cop followed him for, according to the cop, three miles.  The cop turns on his dashboard camera as the cars approach the Liberty County Line (where liberty goes to die).  In the video, you can see that my client's car is getting further from the white car in the right hand lane, and closer to the semi in front of him, thus appearing to be passing traffic and nullifying the reason for the stop.

The officer turns on his overhead emergency lights and pulls my client over.  My client turns on his signal and makes safe lane changes until he comes to a safe stop on the shoulder, at which point he turns on his hazard lights.  The Patton Village Cop calls in my client's Mississippi license plate number, exits his vehicle and goes to the driver door.  The cop talks to my African American client for a full minute with his window down.  My client gives the cop his license, insurance and registration, just as he's supposed to, and the cop orders my client out of the car.  The cop waits for a another cop to arrive (not in the offense report as it should be) then returns to the squad car and runs my client's driver license. 

About 15 minutes later, the cop learns that there are no arrest warrants for my client, he has no criminal history, he has only been pulled over once before, and that his car is coming back as stolen.  The cop places my client under arrest and puts him in the back of the squad car.  My client tells the officer that there must be a mistake, I mean, after all, the his registration and insurance are for that car, they have his name on it along with his mother's name, who shares the same last name and is registered to her address in Mississippi which is the address on my client's driver's license.

The officer agrees to call my client's mother.  To be fair, he could have been a real big jerk and not done that, but on the other side of the token, the evidence before him was that the car was not stolen.  His story made sense.  So, the cop calls my client's mother who answers.  The cop says hes in a stolen car.  She asks what he's driving.  She cuts him off,  "is it a black 2006 chevy hhr?"  Indeed it was.  She assures the cop that the car was not stolen.  The cop sayd he would let her son go in a few moments.

The cop then tells my client he is letting him go, but requests consent to search his vehicle.  My client exercises his Fourth Amendment right to deny the officer consent to search.  At this point, under a new Supreme Court Case called Rodriguez v. United States, the cop had a duty to let my client go.  Instead, the cop called a K9 to search the outside of my client's car.  The K9 arrives 15 minutes later (after more than an hour had already passed where the officer could have called the K9, or actually just searched the car since he had probable cause to believe a crime had been committed).  The K9 made two hits, and the cops recovered some weed and pistol.

We argued that the fruit of the search, were fruits of the poisonous tree, and must be suppressed.  In layman's terms, the cops illegally searched my client's car.

So quick rundown on searches and seizures.  A cop can search a person or a place if there is a valid search warrant.  IF there is not a valid search warrant, the search is presumed to be unlawful.  An officer can search for contraband if he has probable cause."  Probable cause is exists where facts and circumstances are sufficiently strong to justify a prudent and cautious person's belief that certain facts (that a person committed a crime) are probably true.  Probable cause to search exists if the cop sees the person commit the crime, the contraband is in plain view, the officer's smells the weed... so on and so forth.

Here, the cop did not see and dope in plain view. The law holds that an officer must diligently pursue all reasonable avenues to confirm or dispel a belief, and that they must execute the ordinary tasks of a traffic stop in a diligent manner.  So, an officer may not prolong a traffic stop to call a dog or conduct a search without probable cause. 

What are the ordinary tasks of a traffic stop, you may ask?  Investigating and issuing a ticket, running a warrant check to see if the driver if the driver is wanted for arrest, and do a license plate check to see if the car is stolen.  In this case, the officer did a reasonable diligent job in doing the above, and he did a pretty great job at investigating once the car was stolen.  However, once he determined the car was stolen, he did not have the right to detain my client any longer, unless he had developed a reasonable suspicion to believe my client was engaged in or was about to be engaged in criminal activity. FYI, all you officers out there, a HUNCH IS NOT ENOUGH TO DETAIN A MOTORIST!!!  

In this case, the officer did not have an articulable  reasonable suspicion to continue detaining my client and it was his right, as it is yours, dear reader, to DENY CONSENT TO SEARCH his vehicle.  My client did not make incriminating statement, there was nothing in plain view, the car was not stolen, he was not a known drug dealer, he did not come from a known drug house, he was not intoxicated, his story made sense, he was calm, cooperative, honest, did not attempt to flee... I could continue, but you get the point.

There are a litany of cases that define what a cop can and cannot do in regard to a traffic stop.  Rodriguez is great because it affirms absent a reasonable suspicion, the extension of a traffic stop a.k.a. prolonged detention is an unreasonable seizure, and that calling a K9 is not an ordinary or traditional aspect of a traffic stop.

If you have been arrested you need to hire a lawyer who loves to investigate unlawful searches and seizures.  You need a lawyer who can read an offense report and smell something fishy.  You need a lawyer who enjoys researching to protect your liberties.  

Take that **** to Trial! Crash the System!

Crash the System

End the Plea Mill
A Response of Michelle Alexander's Opinion Piece in the New York Times

     What happens when you throw a wrench in into the gears?  The machine stops working!   The criminal justice system we have is a machine.  The police over police impoverished and minority areas.  Prosecutors charge the suspects under laws that criminalize addictions.  Then the judges set unreasonable bonds.  Finally, most poor defendants are given court appointed lawyers, and about 90% of the time, defendants plead.

    When I was at Gideon's Promise Summer Institute we heard from a man that is revolutionizing the criminal justice system in North Carolina that suggested taking just 5% more of our cases to trial would crash the system.  Sean Maher, the former Bronx Public Defender ingrained a saying our minds "Take That Shit To Trial.  Take That Shit To Trial."  Now we have Michelle Alexander, one of the foremost experts on the civil rights problem of mass incarceration joining the crowd.  The time is now.  The time is now to put a wrench into the gears of the criminal justice system.

     Before we can do that, there needs to be a few major changes.  First, judges need to set reasonable bond.  Here in Harris County, there is a standard bond schedule, and we as lawyers need to make sure it is followed.  I get sick when I speak to a potential client who has a $30,000 bond for his first offense, when the schedule says his bond must be set at $5,000.  Second, there needs to be a statistical analysis of every lawyer who takes court appointments. What does their record look like? Is Lawyer A feeding the plea mill as if the mill needed a plea to stay alive?  What percentage of Lawyer A's clients are pleading on their first setting?  The plea mill lawyers needed to be weeded out. Once that happens, defendants will start to gain confidence and respect for their court appointed lawyers.   Third, prosecutor's need to cut out the "first offer, one day only" crap, as if they are furniture salesmen.   First, it puts me in an ethical dilemma as as a defense lawyer, because I have an obligation to conduct an independent investigation, and I have no ability to do that after only briefly looking at an offense report shown to me moment before the offer.  Second, a decision to plea, even a decision to plea time serviced and a $400.00 fine on a misdemeanor possession of marijuana charge can have life-lasting effects. 

     My motto is "Client Centered | Trial Ready."  I want my clients to know that if I take their case, I will be ready to take it to trial.  I expect my clients to take their cases to trial.  I am bitterly disappointed when they take a plea offer.  We should all be client centered. As lawyers, it is our duty to inform clients, appointed and retained, of what the process looks like and the consequences of every potential play.  I understand that most defendants want to plea guilty, do their days-months-years, and move on with their lives.  Its time for this generation of lawyers; its time for this generation of (non) citizens  accused to challenge the system. We can break the system. We will break the system.  Before long, the police, courts, prosecutors and legislatures will reevaluate and change their practices.  We will end Mass Incarceration. 

 

Winning a Felony Motion to Suppress in Houston County, Texas

LISTENING IS KEY...AND GAMBLE

My luck continues with another win.  This time, it was a motion to suppress.

I took the relatively scenic drive north from Houston to Crockett, Texas in Houston County, Texas, color changing leaves and one stop light towns and all.

I was asked by a fellow lawyer to conduct the examinations and argument in a motion to suppress into what was clearly a race based traffic stop that resulted in felony charges of tampering with a government document.

Mexican client was driving down a two lane highway in a pickup truck with aftermarket tail lights. Local Trooper was driving in the opposite direction when he claims he sees that wire was obstructing client's license plate.  Trooper pulls my client over, who is driving between two trucks, each towing trailers without license plates (Trooper doesn't pull them over, obviously).

Trooper immediately takes client out of the truck and asks him a barrage of questions. Client gives a false name in tattered English and cannot provide a license.  Insurance does have his name on it. Trooper tells client to stand near the back of his truck on the driver's side and immediately searches the cabin of the truck.  I am talking about everywhere: seats, under seats, behind seats, map pockets, and glove compartments. Trooper testifies he is conducting this search for his own safety. Trooper then cuffs client and leaves him in the same spot before going to the passenger sides of the truck to continue his warrantless and search.  Finally, Trooper finds pay stubs for several different people.  Trooper then calls client's employer and dutifully brings the social security card my client used to get his job several years ago.

This cop was your typical trooper/former trooper near the end of retirement.  He was smart, but he was too smart for his own good.  He spoke too much for his own good.  On direct by the state, he babbled and babbled and babbled.  I had to come up with a strategy. Do I try and control this seasoned cop in this rural courthouse?  Or do I risk letting him get himself into trouble by speaking too much?  Well, I did a little bit of both.

My opening question poked fun at him for thinking my client may have been a terrorist.  After pissing him off, I sort of let him go because he was now hell-bent on beating me.  He was so focused on talking and his elaborate story that when I asked him in a leading manner if my client was under arrest when he was cuffed, he just said "yes, he was absolutely under arrest."

A moment later, he asked to correct something he said, and there was no way in hell I'd let him do that.  I simply confirmed that he continued to search the truck after my client was placed under arrest, and that during the continuation of the search is when he found the evidence that caused my client to be charged with a serious deportable felony.

The Honorable Judge up there did the right thing and granted my motion to suppress, not on the stop, but based on the search, which I take greater pride in.  It sure was a breath of fresh air to see a district attorney not make frivolous arguments based solely on her desire to make quota or one up his cohort in the office.

All in all, it was a good way to end a week.  I hope I can get the hat-trick.  Keep the opportunities coming.

Not Guilty - Solicitation of a Minor to Commit Sexual Assault - Montgomery County, Texas

First Trial = First Not Guilty Verdict!

Now that the dust has settled, I can reflect on my first trial and first not guilty verdict.

I was called up just days before trial to sit second on a Felony Solicitation of a Child to Commit Sexual Assault trial in Montgomery County.  Only around 1% of cases in Montgomery County get a not guilty verdict.

The Government had a good story going for it: Beautiful, intelligent girl asked by deaf Mexican in creepy truck for a blowjob in exchange for money, then creeper chases her down dark street after she says no.

The problem with that story is that it was not supported by the evidence.  Sure, my client offered the girl a ride, not knowing she was a girl or having any idea of her age.  Sure, his truck came to a stop on a dark dirt road in near the woods.  Sure, the girl had reason to be spooked when she saw his truck roll to stop.

BUT HE WAS NOT A PREDATOR AND I ADMITTED THE BAD FACTS FROM THE GET-GO!

You have to admit the bad facts.  You never know, your bad fact may be supported by your theory of innocence.  For example, our client said his truck ran out of gas and the battery died.  Well, we admit the bad fact and what do we learn in trial that supports out theory of the facts: (1) A 911 caller testifies that my client comminicated that his batter died and he needed a charge; and (2) Pictures ther sheriff took of the bed of my client's truck showed, you guessed it, a tow rope and jumper cables.

BOOM -- a fact beyond change turned into a fact that supports the theory of innocence.

A few words of advice from this attorney who is now in his terrible twos:

1. Get the venirepersons to educate each other during voir dire.  
2. Because solicitation of a minor requires the government to prove the specific intent to solicit and the specific intent to engage in the solicited conduct, ask the jury what type of evidence the would expect to see.  NOTE: a sharp prosecutor will object as an improper commitment question, but it is not so be prepared.
1. You are looking for jurors that want: Money, Condoms, Clothing on, Nudity, Exposed Penis, Fingerprints, Corroborating Witnesses, Eye Witnesses.  You want objective pieces of evidence that support the specific intent.
3. Ask questions that support your theory.
4. Listen for answers that might alter your theme in closing and support your theory of innocence.
5. MOST IMPORTANTLY: in a conservative jurisdiction you MUST spend time harping on how great of a nation, state and even jurisdiction we live in.  It is cheesy but it is the truth:
1. this is not China, North Korea or Iran.
2. We are presumed innocent/ cloak of innocence.
3. We expect the best from our officers. They must exclude suspects/charges before charging/Best technology is a must.
4. I thing this is the most important part of every closing, especially in a sex case, because the government is preying on each juror's fear that the complainant could be their daughter, niece, granddaughter, neighbor, cousin.  When you passionately argue the law, you are subconsciously reminding them that the person sitting next to you at counsel table could be their son, nephew, grandson, or self.