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Age: Is it Just a Number?

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sexting

A 17-year-old cannot vote, buy cigarettes or alcohol, and cannot serve in the armed forces. Yet, a 17-year-old is an adult for criminal prosecution purposes and can legally have consensual sexual relations. Hell, even a 14-17 year old child can legally engage in consensual sex so long as his partner is not more than three years older than him. Despite the fact that kids can legally engage in physical sex, kids may not share nude photos with her lover. Sex is ok, but photos are not because that’s child porn. So, is age just a number? Does it have any real meaning? Is it meant to reflect a level of maturity? Mature enough for sex but not for photos? Is it meant to protect the innocence of childhood even where we prosecute children as adults? Is it reasonable to think that citizens can keep all the differences straight and know what is allowed and what isn’t?

Aldo Leiva, a 51-year-old math tutor, is now facing criminal charges for possession of child pornography and sexual performance by a child. The pornography stems from him receiving topless photos from the 17-year-old. The sexual performance originated because prosecutors claim he induced asked the 17-year-old to provide the photos.

Set aside for a moment that Leiva was a math tutor for this 17-year-old. Imagine he were someone she met at the mall. (Do kids even hang out at the mall anymore?) It would be perfectly legal for Leiva and her to engage in a relationship, even a sexual relationship. Sure, her parents may not like it. But, be that as it may, it would still be legal. Given that he could physically inspect her naked body, why is it that he cannot possess a photo of it? If see her naked body was such a heinous crime, surely Texas would also criminalize the sex as well.

Texas isn’t alone in this enigma. Colorado punishes possession of child pornography where the subject is under 18, yet, the age of consent for sex in Colorado is 17 in general, 15 if the other party is no more than 10 years older, and even younger if the difference in age is four years or less. Kids can engage in sex. They just can’t share photos. Again, makes zero sense!

It’s time to have some consistency in our laws. Consensual relationships are simply that – a product of consent. Yet, we choose to criminalize some acts between the two consenting parties and not others. It’s time to make age more than just a number, especially when the number is different for every crime and situation. Until then, remember, You Can Have Sex With Them; Just Not Photograph Them!


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Waller County Jail Report

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  The Waller County Civilian Commission report is finally out, and you can read it here:

Recommended Police and Jail Practices

We finished our review, and our report! Joined by Hon. Craig Washington, Hon. Morris Overstreet, Juan L. Guerra, Randall Kallinen, and Paul Looney, I spent countless hours trying to help the citizens of Waller County. In an epic move, Sheriff Smith invited us in and gave us unfettered access to his domain: people, places, and practices. We came and went as necessary. We interviewed whomever we wanted. We looked at whatever we chose. And, ultimately, we created 9 recommendations that have the potential to change law enforcement:

  

  • Better screening for mental health and illness
    • use of video (Skype or other technology) can provide immediate access to a physician
    • additionally, the same video equipment can provide immediate contact with a magistrate to set or review bond or even provide a personal recognizance bond to shorten jail stay
  • Police worn body cameras
    • develop policies to record and store all police interactions
  • Language and demeanor issues
    • address use of derogatory language
    • eliminate the stigma and treat others with dignity and respect
  • Counseling and fitness to serve for officers and jailers
    • mental health is just as important as weapon proficency
  • New jail facilities
  • Booking processes and information sharing
  • Digital reporting
  • Public information
  • Separation between jailing and policing

To be sure, every person in every agency can improve. We only hope our roadmap with some specific improvements can bring about greater respect for both the authorities and the citizens.

While it is sad that it took a suicide to bring change, better that change comes!


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Right to Bear Stun Guns

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Yesterday, the U.S. Supreme Court ruled a Massachusetts woman just might have a 2nd Amendment right to carry a stun gun. She was originally arrested, charged, and convicted of carrying a stun gun in violation of Massachusetts’s law. All agreed she bought and carried the stun gun for protection from her abusive ex-boyfriend. The Court, setting aside her conviction, essentially expanded the 2nd Amendment “right to bear arms” by suggesting a woman has a right to carry a stun gun, or taser, in public to defend herself.

A few states, including Massachusetts, New York, New Jersey, Rhode Island, and Hawaii, as well as several cities have passed laws that generally forbid the carrying of tasers or other similar electronic shock devices. Now, those laws are in question. Without specifically saying stun guns are specifically protected by the 2nd Amendment, the per curium opinion (an opinion in the name of the court rather than a judge or judges) held the Massachusetts court misunderstood the Supreme Court’s prior rulings on how to determine whether a particular weapon is protected or not. In short, the Supreme Court told Massachusetts to come up with a better reason for its prohibition if it wants to keep the prohibition.

The Massachusetts court made three arguments for upholding its law which forbids carrying stun guns in public.

First, Massachusetts said stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” The Supreme Court found this theory unpersuasive and against its prior rulings. Just because a particular technology was not available or common in the 1800’s, does not mean the 2nd Amendment cannot protect it. Specifically, in its prior rulings, the Supreme Court has said the 2nd Amendment extends to arms that were not in existence at the time of the founding of our Amendments. (Heller court opinion)

Next, the Massachusetts court relied on its position that stun guns were dangerous and unusual as a reason for upholding its ban. The Supreme Court again found this theory without merit. The Supreme Court said Massachusetts equated “unusual” with “in common use at the time the 2nd Amendment was enacted.” And again, the Supreme Court stated the state could not rely upon only those arms that existed at the time of the Amendment.

Finally, the Massachusetts court stated stun guns were not of the type of weapon which would be readily accessible to the militia. Massachusetts based this on the 2nd Amendment itself and its language regarding a well regulated militia being necessary to justify the right of the people to keep and bear arms. Again, the Supreme Court took exception and reminded Massachusetts that its prior rulings did not limit the 2nd Amendment protection to only those weapons used in warfare.

Finding each of Massachusetts’ reasons flawed, the Supreme Court vacated or cancelled the woman’s conviction and directed the Massachusetts court to reconsider in light of the Supreme Court’s rationale and prior rulings.

With the Supreme Court issuing a very brief opinion, Justices Alito and Thomas entered their own concurring opinion to better explain their position. After detailing the events surrounding the abusive ex-boyfriend and the state of Massachusetts failing to protect her, they take Massachusetts to task for failing Ms. Caetano yet again:

A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense.

It is clear from these opinions that the 2nd Amendment is alive and well in the United States. The Supreme Court is unwilling to change its prior positions and looks for the states to get in line with the right to keep and bear arms.

 


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Unforeseen Consequences

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Criminal convictions have intended consequences. They carry punishments that include life and liberty. Convictions can cause someone to be jailed for a period of time. They can cause payment of fines and participation in rehabilitative programs. But what happens when the punishment is over?

After the punishment comes the collateral consequences – the unforeseen consequences that can haunt the rest of someone’s life. I’ve touched before on this before as I covered whether one’s debt to society is ever truly paid in full. But now I want to focus on some of the very real and very specific consequences that are indirect but just as important.

Financial Consequences

Financial consequences include employment restrictions, licensing for specific jobs, financial aid and government assistance, educational benefits, social security benefits, asset forfeiture, and surcharges.

Employment is the most commonly recognized consequence. Certain convictions can cause employers to simply pass on hiring or fire a particular employee. This could be simply because the employer chooses to base employment on certain criteria or because particular licenses are required for employment.

The Texas Occupations Code sets general rules for the licensing of plumbers, cosmetologists, boxing promoters, pawn shop owners, air-conditioning contractors and so many more. Depending upon the type and severity of the conviction, licensing may be denied or suspended. This leaves these folks out of work and unable to meet their financial obligations. Additionally, some specific professions require their own licenses or accreditations such as lawyers, architects, dentists, doctors, engineers, social workers, therapists, and more.

Financial aid and government assistance such as grants, government loans, and even food stamps are tied to collateral consequences for those convicted of certain crimes. Any possession or distribution of a controlled substance (including marijuana) can temporarily or permanently bar students from federal and state educational grants and loans.

Social security benefits are stopped for a person incarcerated more than 30 days on a conviction. Though this makes some sense, it also sets up additional financial obstacles for that person’s family.

Federal law imposes a lifetime ban on food stamps and federally funded public assistance for drug felons. And Texas follows the federal law. This is another example that harms not only the convicted felon but his entire family.

Creating large financial hardships, the government will often forfeit assets such as cars, homes, and cash. Understandably, felons should forfeit illegal proceeds and the assets purchased by such illegal proceeds, but our broad system of forfeiture allows the government to cast a much broader net. Did you realize the government can seek to forfeit the car used to flee the scene of a crime? Did you know some jurisdictions go after the personal homes of those convicted of sexual offenses committed inside the home.

Rounding out our financial consequences are the surcharges placed on licenses such as a drivers license. In a DWI conviction, the Department of Public Safety assess a $1,000 -$2,000 per year, for three consecutive years, surcharge on your right to drive.

Other Consequences

In addition to financial consequences, there are a great variety of other consequences which include deportation, restrictions on possession of firearms and ammunition, inability to hold public office, loss of voting privileges, and even restrictions on child custody and conservatorship.

Restrictions on custody and conservatorship are often overlooked or unknown. A protective order in place for family or domestic violence will prevent a parent from being a joint managing conservator of his own children. Additionally, for safety reasons, access to one’s own children may be restricted or supervised based on prior abuse.

With all of these consequences and more, it is imperative that lawyers understand these consequences and fully explain them to clients deciding whether or not to “take a deal” in their criminal accusations. With all these lasting consequences, it is clear that most people cannot truly pay their debt to society in full and move forward.

 

You can look up specific collateral consequences by state here


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Just Because You Can, Doesn’t Mean You Should

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Sure, a prosecutor can choose to prosecute a case, but that doesn’t always mean he or she should.

Trace Cocaine Cases

Years ago, then Harris County District Attorney Pat Lykos made the choice to decline prosecution of trace amounts of cocaine. This didn’t mean she approved or condoned cocaine possession. It didn’t mean cocaine cases were not prosecuted. It simply meant she chose to use her limited resources for more serious cases, cases involving more than just residue. Under her watch, trace amounts of cocaine meant residue left on a baggie or pipe; something that was may not even be seen, and certainly was not capable of being used, but could be tested for or seen through a microscope. While she was widely criticized by her opponent in the next election cycle for her position, it made sense and it freed up judicial resources and taxpayer money to focus on more serious crimes.

Since her defeat and the return of the prosecution of trace cases, we saw a large increase in these cases which necessitated the creation of a separate “state jail court” as we called it. This extra court had to be staffed and operated seven days a week just to handle these cases. This court had to be funded by the tax dollar. In this court, cases would languish on the docket, with defendants mostly sitting in jail unable to afford a bond. Defendants in this court were rarely offered treatment and simply moved on from the county jail to the state jail, eventually to return to Harris County and begin the cycle again.

Perhaps it is time once again to consider whether or not these cases should be prosecuted.

Interestingly, with that extra court tied up on such relatively small cases, we saw other courts becoming backlogged as well. This October, the state jail court was repurposed and became what we call “impact court.” Impact court is a trial court meant to ease the backlog of felony cases, many of which are sexual assaults, robberies, and murders. Certainly seems we should have focused resources on these cases all along and not worried so much about trace cases.

Small Marijuana Cases

Jeff McShan, spokesperson for the Harris County District Attorney’s Office, told the Texas Tribune in June, misdemeanor courts are now a mess and are backlogged with more than 10,000 marijuana cases. To ease this logjam, the District Attorney created its First Change Intervention Program aimed at removing non-violent low-level marijuana cases from the courts.

Not only was this program designed to divert cases from the court, it also sought to easy jail overcrowding by diverting these non-violent citizens from the local jail.

The program, in terms of a participant’s completion has been largely successful; however, in terms of diversion the program has been less than stellar. Diverting only about 19% of the program’s participants from the jail and the courthouse, the program has made little impact on these valuable resources.

Perhaps it is time to rethink prosecution of these cases. The District Attorney could easily force a diversion in almost all these cases but chooses not to.

Assault / Domestic Disturbance

Here, you will notice i didn’t use the term domestic violence. Certainly, true violence whether domestic or otherwise, should not be tolerated. But here, I’m talking about disturbances that are routinely prosecuted despite the participants’ desire.

All too often we see cases where the police are called to a disturbance. Emotions are usually high as the police arrive and seek to determine what happened. Perhaps the two participants in the disturbance were upset. Perhaps they were arguing. Perhaps things got out of hand and one participant pushed the other back. Perhaps that push, meant to place distance between the two, resulted in one sustaining a red mark to her arm. That red mark is most often referred to as an injury and the other person is arrested, taken to jail, and prosecuted. Perhaps one party stretched or embellished in a moment of anger.

Now, should the “injured” party settle down and notify the prosecutor that things just got out of hand and she really doesn’t want her companion to be prosecuted, that case is immediately sent to the “family criminal law division” for follow-up and continued prosecution. In effect, the injured party is given no say in whether or not the prosecution goes forward.

Many of these incidents involve no real injury and no repeated violence. Yet, they are prosecuted.

Again, not that prosecutions of abuse should be ignored, but many of these instances do not amount to abuse. They are single instances of heated arguments.

Prosecutions, while great for business, must be taken with care and insight into the expenditure of valuable resources. Prosecution: just because you can, doesn’t mean you should.


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Use of Juvenile Priors

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One of the questions I’m asked most frequently is whether a particular juvenile prior adjudication can be used to enhance a new adult criminal charge and bar probation eligibility.

Under Penal Code §12.42, felony offenses can result in enhanced punishments for those previously convicted of felony offenses. When looking at a prior juvenile adjudication, certain adjudications are counted as “convictions” for purposes of PC§12.42.

For purposes of Subsections (a), (b), (c)(1), and (e), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Youth Commission [now Texas Juvenile Justice Department] under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, is a final felony conviction.

The important distinction is that the adjudication is only treated as a conviction for purposes of certain subsections of 12.42; not for all purposes. So while punishment may be enhanced by a prior juvenile adjudication, that adjudication does not bar consideration for probation under CCP Art. 42.12.

Because §12.42 applies only to first, second, and third degree felonies, juvenile prior adjudications cannot be used to enhance punishment for state jail felony offenses.  State jail enhancements are governed by §§ 12.35 and 12.425, neither of which defines prior juvenile adjudications as convictions.

When dealing with first, second, and third degree felonies, a prior juvenile adjudication for felony conduct which resulted in confinement in TYC or TJJD is treated as a conviction for enhancing the punishment range in the current charge. Because §12.42(f) limits the use of juvenile adjudications to sections (a), (b), and (c)(1), juvenile adjudications do not count towards habitual status which is governed by §12.42(d).


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DNA Errors: Big Deal or Not?

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Have you seen the news? The FBI has announced errors in its database which is used across the nation and in Texas. In two prior blog posts (on separate sites), I addressed this issue.
August 7, Just How Accurate is DNA?, HCCLA.org (with memo downloads)
September 18, FBI DNA Calculation Errors, HCCLAtv.com

Today, Fox 26 News visited with me to get a perspective on just how big this problem is.
As I told Andrea Watkins, Fox26 News, the problem will be large simply because each case will have to be identified and then reviewed to see what impact the DNA results may have had on a particular plea-bargain or jury verdict. Ultimately, this will amount to thousands of cases locally as the errors have existed and been perpetuated since 1999.

The problem is that errors in the statistical database could have caused an inflated reliance on a match. For example, instead of the probability of a particular DNA sample matching a suspect or defendant being 1 in 1 billion, it could be that it is only a 1 in 100 chance of belonging to the same person. This certainly changes the landscape and statistical chance of the DNA being left by the same person.

This problem is compounded in “mixture” cases. A mixture case is where two or more persons have contributed to the sample. We often see swabs collected from crime scenes where the analysis reveals the DNA of two individual people. The statistical errors, once corrected, can cause a scientific result which once included a suspect to now exclude that same person because of the lack of strength in the probability of the result matching. (I hope that makes sense. Essentially, science sets limits. If the probability falls below the lower limit, it is no longer considered a scientific match; so if the recalculation falls below, it is no longer considered reliable.)

Of course correcting each DNA statistical calculation will not ultimately help every defendant or suspect. But i will change the scientific reliability in some cases; therefore, each case will have to be analyzed to see whether or not it is affected.

This is a huge undertaking. It will take time. And, it will certainly add to the backlog in crime labs and the overall turn-around on testing old as well as new evidence.

In any event, I’m staying on top of this and will continue to report what I can.


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Sept 1, Day of New Laws

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This September 1, the criminal justice system finds itself amidst change. Below are some of the highlights of our new legislation.

Theft

Through House Bill 1396, Texas passed legislation that changes the “value ladder” for many property crimes. Property crimes such as theft, mischief, graffiti, frauds and other various offenses use the “value” of the property to set the level of crime and thus the punishment. In the most common example, before September 1, 2015, a class C (fine only offense) consisted of theft of property under $50. Now, effective September 1, 2015, adjusting for inflation, a class C consists of theft of property under $100.

Thanks to Judge Ryan Patrick, here is a recap of the change in the “value ladder”:

Level Old New (as of 9/1/15)
Class C Misd1 <$50 <$100
Class B Misd $50 – $500 $100 – $750
Class A Misd $500 – $1,500 $750 – $2,500
State Jail Felony $1,500 – $20,000 $2,500 – $30,000
3rd Degree Felony $20,000 – $100,000 $30,000 – $150,000
2nd Degree Felony $100,000 – $200,000 $150,000 – $300,000
1st Degree Felony >$200,000 >$300,000

Non-Disclosure

Non-Disclosure is a section of the law that allows certain criminal history records to be non-public. This process (making a record non-public) serves to remove certain records from your public criminal history. Even though removed from public view, this process leaves the criminal record in tact and available for law enforcement and other entities such as regulatory agencies, schools, banks, and hospitals, to name just a few.

Effective September 1, non-disclosure of certain low level misdemeanor deferred adjudication sentences becomes more automatic. When a person meets the criteria for non-disclosure, the court must grant it. Under the old law, the judge had the discretion to grant or deny your application for non-disclosure. This new legislation found in Senate Bill 1902, sets forth the differences between automatic and discretionary non-disclosure. It also extends non-disclosure to certain misdemeanor convictions where a person successfully completed community supervision (probation). Non-disclosure laws do not apply to assaults, DWI, weapons, family violence, public indecency, and other more serious offenses. It is meant to allow the first time low-level offender to move on with his or her life without the general public viewing that mistake or transgression.

With the new changes and expansion of situation that can be non-disclosed, anyone with a minor criminal history should consult a lawyer about whether or not they may receive the benefit of a non-disclosure.

Searches

House Bill 1396 mandates that police get a warrant to access and search cellular telephones found on or near a person under arrest. This legislative change follows the United States Supreme Court’s recent ruling in Riley v. California where the Court stated a search of these devices, today, implicates very sensitive privacy interests because these personal devices contain personal and sensitive information.

Additionally, House Bill 324 sets forth something many of us would have assumed to be common sense: a search warrant is required for body cavity searches during a traffic stop. So no more roadside cavity searches, absent a warrant supported by probable cause.

Juveniles

In a throwback to the way we used to do things, Senate Bill 888 makes juvenile certification decisions (for juveniles to stand trial as adults) immediately appealable rather than only after final conviction as an adult. Truancy was decriminalized (House Bill 2398) and taken out of the juvenile courts for students. And Senate Bill 107 amends the education code to eliminate automatic zero tolerances for expulsions, giving the school officials discretion through the creation of a campus behavior coordinator.

Other Changes

Of course there are dozens more changes to definitions of criminal conduct. “Disabled individual” has been expanded to include a broader class of citizens, giving prosecutors the ability to charge offenders with greater levels of offenses for assaults against disabled persons, the elderly, and children. Drugs, such as synthetic marijuanas are now classified and identified for prosecution. Handguns now follow “open carry” provisions as well as concealed carry provisions. We also have a new offense for “revenge porn” and “peeping Toms”. Revenge porn targets those who share or make public photos or video that was otherwise intended to be private. There are also new trial priorities for offenses where the alleged victim is younger than 14 years of age; these cases will be given priority over other criminal trials.

For convenience, the legislature even gave the ability to pay fines and fees roadside with a debit or credit card!

So many changes, but these are a few of the highlights.


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