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Just Because You Can, Doesn’t Mean You Should – Revisited

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One year ago today, I wrote “Just Because You Can, Doesn’t Mean You Should” to discuss the discretion of prosecutors. Prosecutors can and do choose which offenses and people they will prosecute. It’s a matter of resources. It’s a matter of proof. It’s a matter of discretion. Every case that is prosecuted requires some portion of an amount of limited resources. Just like policing – a heavy presence in one geographical region necessitates less presence in another – heavy focus in one prosecution results in a lesser focus on another.

In the past, Harris County District Attorney Pat Lykos decided to discontinue the general prosecution of “trace cases.” This involved freeing up prosecutorial and court resources which were being used to prosecute residue cases so that those same resources could be better utilized for other serious violent crimes. And that made sense: many resources were freed up. In fact, drug court backlogs were alleviated and impact courts were created in their stead. This meant that more serious cases were being taken to trial instead of using those same resources for low-level, almost non-existent offenses.

Even today, Harris County District Attorney Devon Anderson has decided to discontinue the general prosecution of first offender small amounts of marijuana. She expanded this to also include low-level thefts like shoplifting. By diverting these offenders from the jail and the court, she freed up resources to concentrate on other more serious offenders.

A year later, I am left wondering about other resources that may be better utilized. Today on Legally Speaking, John and I discussed the progression of cases in the local courts. Often, people are arrested and cases are filed, necessitating the use of substantial prosecutorial and court resources, even before evidence is available. Take for example, some DWI cases. If the accused exercises his right to refuse a breath test, the police will rely on search warrants for blood in an effort to prove intoxication. It can take 3 months or more before the results of that test blood will be revealed. Yet, the arrest is most often made and the accused is charged and supervised under pre-trial conditions for the next several months while we all wait on the results.

Incidentally, some blood tests (estimated to be between 10-15%) reveal a blood alcohol level lower than 0.08. Yes, that means in a percentage of the cases filed, the accused is actually and legally not intoxicated. Yet, they are arrested, have likely posted bond, have been placed on courtesy pre-trial supervision, paid the fees for intoxilyzer devices on their persons or vehicles, and have appeared in court every 3-5 weeks while waiting to be cleared.

The same is true of drug cases. Before anything can be done with a drug case, the evidence must be sent to an accredited lab and analyzed. This process can take 2-4 months. During that time, the prosecutor is not able to move forward with prosecution. The DA in Harris County has a standing policy against plea-bargaining these cases unless the substance is confirmed to be an illegal substance. So there is essentially a standstill. Yet, the accused is perhaps sitting in jail waiting, returning to court regularly, or maybe released on bond but still returning to court regularly.

This is an absurd use of resources. There is no reason charges must be filed in every instance up front. There is no reason to tie up police, jail, and court resources for each and every case. Counties outside of Harris have aptly figured this out. Just because you can, doesn’t mean you should.

In Nueces County, prosecutors are actually agreeing to the release of accused of possessing synthetic marijuana. Knowing it will take more than 6 months to have the substance analyzed, they are recommending the release of those accused. With analysis taking an average of 9 months to one year, they recognize the accused could remain in jail longer than the maximum punishment of 180 days in the county jail. This is a matter of resources, and perhaps justice. Jails are routinely overcrowded. The Nueces County jail has been at or near maximum capacity, and this is an opportunity to ease the overcrowding and refocus prosecutorial resources unless and until a lab confirms an actual illegal substance.

Yet, Harris County clings tight to the notion that prosecutions must be immediate and linger, even where evidence will not be available for some time. Yet, Harris County faces the same jail overcrowding. Yet, Harris County prosecutors have the same discretion: they do not have to file the case unless or until evidence is available.

But, apparently, that’s how we’ve always done it so it is most likely to continue. Because they can, they will. And not much will change.

 


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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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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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System is Broken

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‘This idea of total incarceration just isn’t working.’—Justice Anthony Kennedy

Justice Kennedy and Justice Breyer speak out against a broken system.

I agree! Incarceration is expensive. Recidivism rates are higher following incarceration because those offenders can no longer get jobs. They didn’t get “help” in prison. They are left without sufficient resources following long periods of incarceration. 

Instead, recidivism is lower following probation programs. Probation is cheaper. Probation and diversion programs build lives rather than tear them down. 

While usually siding with law enforcement, Justice Kennedy points out, “The corrections system is one of the most overlooked, misunderstood institutions, functions, that we have in our entire government.” 

Finally, we have respected judiciary calling for reform and thought. Mandatory minimums don’t make sense. Supervision leads to better return to society. Let’s look at other models for improvement of our broken system. 


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Jobs after Conviction: Not likely!

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It is difficult enough to find work.  Saddle a person with a “conviction” or even a “probation” and employers will quickly pass on that applicant.  Our “tough on crime” mentality over the past 20-30 years has created an environment where 17 year olds (treated as adults for even minor offenses) with a first possession of marijuana, or CEOs with a one time DWI, or 20 year old first time shoplifters are now saddled with criminal records.  Years ago, our legislature created “deferred adjudication” which was a probation without a conviction. However, in the digital age of electronic records, employers see that deferred and treat it just like a conviction and pass on the applicant.  Even where possibilities exist to “seal” records or make them non-public, there is often a waiting period before the records are removed, resulting in internet records that can last a lifetime! A one time mistake should not hinder someone for life!

A recent NY Times article explores this problem as well:

There is no dispute that far too many Americans carry the burden of a criminal record — at least 70 million, by recent estimates — or that the easy accessibility of these records in the information age imposes debilitating obstacles, especially when it comes to finding a job.

The harder question is what to do about it.

Employment is, after all, an important factor in keeping people out of the criminal justice system, yet, in a struggling job market, employers are often tempted to turn away anyone who appears to pose even the slightest risk. Thanks to the proliferation of companies offering instant online background checks, a vast majority of employers now run such checks on all job applicants. They can, and do, refuse to hire people on the grounds of an arrest itself — let alone a conviction.

It’s time for a change!  Tough on Crime needs to become Smart on Crime!  Legislation was introduced this session which would allow for DIVERT programs in first offender DWI cases.  This is great news!  This allows a non-violent, misdemeanor arrested person (first offense only) a chance to attend treatment, do community service, attend classes, keep a job, and eventually have their record sealed or expunged.  Let’s hope this bill passes!

Just putting people in jail doesn’t cure the problem that exists,’ said Rep. Harold Dutton (D-Houston), who himself was arrested for DWI in Austin in 2007 and received deferred prosecution, according to public records. Rep. Dutton argues diversion programs worked in Harris County, which includes Houston.

His bill, HB 543 calls for giving counties the power to create specialty courts, the so-called Direct Intervention using Voluntary Education, Restitution, and Treatment (DIVERT) program, for people arrested for, charged with, or convicted of drunk driving the first time. “It sends a signal that the state is not here to just beat you up if you have a problem, that we’re here to help,” said Dutton. Offenders would pay for program fees, weekly testing, and counseling and be required to have an Interlock device on their car for at least a year.

After two years, the bill says a court could decide to file an order of nondisclosure “as if the defendant had received a discharge and dismissal…with respect to all records and files related to the defendant’s arrest.”

When asked if he was letting off people easy for drinking and driving, Rep. Dutton said, “We figured out that being tough on crime by being dumb on taxpayers money was a waste of time and a waste of resources.” Rep. Dutton says the cost per county would depend on how much each county was already spending on probation, which he says is cheaper than jail time.

Read More at: http://www.keyetv.com/news/features/top-stories/stories/bill-could-get-1st-time-dwis-taken-off-record-24511.shtml


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legal lies

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Facebook: Like it or Leave it, but make no mistake about it law enforcement uses it as tool to probe into your information. And I like that Facebook is telling them to stop using their service to lie! The DEA (drug enforcement agency) creates fake profiles as part of ongoing investigations. And Facebook’s chief security officer is telling them to stop: law enforcement needs to follow the same rules as civilians about being truthful. Facebook rules prohibit users from lying about who they are!

The Huffington Post: Facebook Tells DEA to Stop Operating Fake Profile Pages
KHOU.com: Facebook Unfriends DEA

One of the biggest mistakes Americans has made is to allow policeman/law enforcement to lie. They create fake online IDs and profiles, they lie about polygraph results, and they lie about evidence. Well, some do. Many law enforcement officers do not.

Let me start by letting you know my story:
My father was a police officer for 33 years, most of my life.  Now he practices law with me, and we have a criminal defense firm. My brother is a police officer. My brother’s wife is a police officer. Many of my friends and family friends are police officers. I grew up around them. Another lawyer in my firm was a police officer for just over 27 years. We love law enforcement – well the good ones! Growing up, my father taught me you didn’t have to lie to catch the bad guys. You didn’t have to cheat. And you didn’t have to worry if they got away because they’d be back and you’d get them next time.

It seems innocent enough when law enforcement officers (VICE COPS) enter a house of prostitution in plain clothes and pretend to be anyone other than a cop. They even deny being cops when specifically asked. Seems innocent enough, and they use this approach to catch the prostitutes offering services or dealers selling street drugs. But just how far can the lies go?

Can police polygraph a murder suspect and lie to him about the results? Ask Anthony Graves about this one. He is one of many who faced this lie. Being accused of capital murder, police interrogated him about his whereabouts and the crime. He maintained he was innocent, knew nothing about any of the facts or circumstances surrounding this crime, and requested a polygraph to show his truthfulness. The Texas Rangers polygraphed him and told him he failed! Ask any honest law enforcement officer and they will know at least one other officer who would lie to a suspect about their polygraph results to “encourage” the suspect to be more forthcoming!

My dad and I worked a capital murder case (as defense lawyers) where we were originally skeptical about our clients version of facts: he claimed to know nothing about the offense, yet he was charged with capital murder and his brother had given a confession saying both brothers were involved! Now, there was no polygraph in this case but it took over 18 months to prove the confession was false because it had been tainted by law enforcement and that both brothers were actually innocent. With no polygraph at play, we still had law enforcement “encouraging” a confession. When our client didn’t take the bait, law enforcement went after the mentally challenged brother and after hours of work had secured a confession. The “confession” and a “similar color truck” was the only evidence that linked these brothers to a capital murder. The brothers had a maroon truck and a witness to the capital murder identified a red truck. Red/maroon…close enough for government work! (To be fair, there was another aggravated robbery in the same area just prior to the capital murder in which the victims gave descriptions of the red truck and the suspects. Using a crimestopper’s tip pointing to the brothers, photospreads were compiled and shown to the victims – the victims picked our client and his brother and said they were “pretty sure” it was them. This was enough to get the boys charged and brought in for questioning which is when the brother “confessed.”)

Yet, our client and his brother maintained actual innocence and no knowledge of the incidents. Now you might ask, How does one prove innocence? Well, the only sure way is to find the truth: find the real killer! And that’s what we spent 18 months doing while our client and his brother sat in jail accused of both the aggravated robbery and the capital murder. Read more about this case here in Mary Flood’s column. Thankfully, once we found the real killers, we found two prosecutors willing to look at what we had. Granted, they were taking what we had and trying to disprove it, but when they went to visit Billy Joe Garza (one of the suspects we developed) in prison (now there for a different offense), they were surprised to hear Billy Joe say he was wondering when they’d figure this out! Turns out our two suspects where the real killers after all! Now back to the legal lies discussion…

Can law enforcement build an entire case out of lies? They do! I worked a federal conspiracy case where federal agents did just that! Federal agents, responding to the problem of rival drug dealers stealing drugs from competing drug stash houses, lied about wanting to set up a robbery of a stash house. Agents (undercover of course) made contact with an informant seeking information on associates who might help them “rob” a stash house. Telling the informant there would be at least 20 kilos of cocaine in the house, they needed 4 or 5 armed men to help go in and get the cocaine as well as any cash on site (claiming there would usually be about $25,000 in the stash house). The informant rounds up some contacts and pitches the idea. When the contact bites on the potential to score some cocaine and cash, a meeting is set between the contact and the undercover agents. The agents tell the contact what they want and how they will split up the proceeds (the cocaine and cash). The contact is told to arrive on a particular date, with a crew, at a particular location (usually a parking lot) to receive the address of the stash house. That day comes and the crew arrives. They are given the location of the “stash house” and the agents make sure they are armed. The crew is given the “stash house” address and they drive off.  As they arrive at the “stash house” they are all taken into custody by more federal agents waiting at the location. By the way, there is no stash: no cocaine, no money, nothing. Just an empty warehouse. All those from the contact to the crew are arrested and charged with conspiracy to possess at least 20 kilos of cocaine while carrying a firearm.  Why 20 kilos? Well (1) it has to be an attractive amount and (2) 20 kilos is the amount that bumps up the federal sentencing guideline. Why firearms? Well (1) because it’s supposed to be robbery and (2) possessing a firearm also bumps up the federal sentencing guideline. Long story, but what can law enforcement lie about? (1) a stash house that never existed, (2) cocaine, 20 kilos to be exact, that doesn’t exist, and (3) the informant’s participation. (You see, the informant got a reduced punishment for his crime by bringing in more criminals to prosecute on a fake stash house!) Essentially, we are left with a crew that agreed to rob a stash house that doesn’t exist – they are each arrested and charged with trying to possess cocaine.

Can police lie about evidence? You bet they can! (outside of court anyway) They might say you failed a polygraph; they might say they found your fingerprints or DNA at the scene; they might say your brother confessed. The point is they are legally permitted to lie to the public, lie to citizens, and stretch the truth to see if they can persuade you into committing a crime (i.e. prostitution or any other crime) or persuade you into giving up information against yourself or others. Police lie with impunity regularly. They are not supposed to lie in court though – another day, another topic.

We were once taught to respect the police and be honest: just tell the truth. Why don’t we expect the same from them?


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Synthetic LSD “25i”

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For the past several years, 25i (or synthetic LSD), a designer drug, has been sold and used in the greater Houston area. Many user believed this drug to be “legal”, and they were correct within the State of Texas for a short time.

In Texas, drugs are listed by schedules (in the Controlled Substances Act) and assigned to penalty groups identifying the punishment ranges for possession or distribution of each drug. Because of the technical nature of the Controlled Substances Act, the chemicals comprising 25i [4-IODO-2,5-dimethoxy-N-(2-methoxybenzyl)phenethylamine] were simply not listed under any schedule or penalty group. Thus, 25i was technically legal within the state.

In late 2013, however, the Federal Government took steps to criminalize this chemical compound. Following suit, Texas similarly declared this chemical compound to be illegal. By notice and publication in the Texas Registry on February 7, 2014, the Department of State Health Services classified 25i as a temporary Schedule I drug, making it illegal in Texas 21 days after publication. Therefore, on February 28, 2014, 25i (synthetic LSD) became illegal.

Users and sellers beware!


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