austindefender

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I came across this the other day -  it does a much better job explaining the difference than I ever could.

Yahoo says that signing someone else’s name on a check is illegal.

Signing someone else’s name on a check is generally considered forgery and would be illegal in most states, according to Carol Kaplan, a spokeswoman for the American Bankers Association in Washington, D.C. But suppose an adult child signs an elderly parent’s name because the parent is incapacitated or a parent signs a child’s name because the child is away at college. Guess what? Those signatures are still forgeries, unless a power of attorney is in effect.

“In most cases, it’s on behalf of a loved one who probably isn’t going to object, but people should know that that’s forgery,” Kaplan says.

Not exactly.
Forgery is signing someone’s name without authorization.

“Forge” means:
(A)  to alter, make, complete, execute, or authenticate any writing so that it purports:
(i)  to be the act of another who did not authorize that act;

Texas Penal Code 32.21.

If you sign someone else’s name with permission, it’s not forgery.

Some of the Judges in Travis County, for example, have signature stamps, to make signing documents easier. If one were to ask someone (her clerk, for example) to stamp some papers for her, there is no crime there.  It’s not who is holding the stamp (or the pen) that matters, it’s whether the person wielding the stamp is authorized to do it.

The law on forgery is actually even stricter than that.  In addition to being done without permission, the act has to be done “with the intent to defraud or harm another.”

Arab man who posed as Jew to seduce woman convicted of rape

An Arab resident of Jerusalem who had consensual sex with a woman who believed him to be Jewish, was convicted yesterday of rape by deception and sentenced to 18 months in prison by the Jerusalem District Court.

Sabbar Kashur, 30, was convicted as part of a plea bargain. According to the indictment, Kashur met the complainant in September 2008 in downtown Jerusalem, presenting himself as a Jewish bachelor looking for a serious romantic relationship.

The couple then went to a nearby building and had sex, after which Kashur left the building without waiting for the woman to get dressed.

When the woman found Kashur was not a Jew but an Arab, she filed a complaint that resulted in charges of rape and indecent assault.

In the verdict, deputy president of the Jerusalem district court Tzvi Segal, along with fellow judges Moshe Drori and Yoram Noam, wrote that although this wasn’t “a classical rape by force,” and the sex was consensual, the consent itself was obtained through deception and under false pretenses.

“If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” the judges wrote.

Could it happen here?  Probably not.

In Texas, sexual assault is sex “without consent.”  While that can mean deception in some cases – theft, for example – it’s not defined that way when it comes to rape.

Israeli law, on the other hand, treats sex more like an economic transaction.  If consent is obtained through deceit, or fraud, then it doesn’t count.

It makes a certain amount of sense.  Massachusetts, for one, has considered making sex-by-deceit into a crime.  Other states make it a crime to pretend to be someone’s husband when you’re not.

But pretending to be Jewish to get laid?  A misdemeanor, at most.

DNA is often considered definitive proof in criminal cases.

In “Calculated Risk” Gerd Gigerenzer reminds us it may not be as reliable as people think it is.

The expert witness testifies that there are about 10 million men who could have been the perpetrator.  The probability of a randomly selected man having a DNA profile, that is identical with the trace recovered from the crime scen is approximately 0.0001 percent.  If a man has this DNA profile, it is practically certain that a DNA analysis shows a match.  If a man does not have this DNA profile, current DNA technology leads to a reported match with a probability of only 0.001 percent.

A match between the DNA of the defendant and the traces on the victim has been reported.

Question 1.  What is the probability that the reported match is a true match, that is, that the person actually has this DNA profile?

Question 2.  What is the probability that the person is the source of the trace?

Question 3.  Please render your verdict for this case: Guilty or not guilty?

You might want to think about it for a minute.

According to Gigerenzer, the answer to the first question is that the probability of a “true match” is 9%, or 1/11.  In other words, the chances are 91% that the defendant’s DNA doesn’t match the perpetrator’s – that the lab made a mistake.

Gigerenzer says the chances that the defendant is the “source of the trace” – in other words, that it was his DNA – is even lower: 0.9%, or less than one in a hundred (1/110, to be precise).

Of course, all that depends on the defendant having been selected at random, from a pool of 10 million men.  That’s not usually how it happens.  If there is other evidence that the defendant is guilty – in other words, some other reason the defendant was tested, other than being one among 10 million men – Gigerenzer’s calculations won’t work.

Still, his calculations show how dangerous it is to rely on DNA alone.

More importantly, Gegerenzer discusses the possibility of lab error, about which surprisingly little is known.

The laboratories that do the work are surprisingly hostile to outsiders. Independent testing of the results of their work is rare.  The FBI has resisted efforts to discover the results of their own internal tests.

Gigerenzer says that one of the few outside studies of laboratory error, two out of three labs reported false positives (matches that weren’t there), when sent a batch of 50 samples.  In a subsequent test, one year later, one out of the three reported a false match.

Experts say the error rate is between 1 in 100 and 1 in 200.

All of which makes DNA expert-witness testimony about the accuracy of DNA tests meaningless.  When an expert testifies that the chances of a random match are 1 in a million, or whatever, he’s talking about the chances excluding the possibility of human error.

Human error, however, can’t be excluded.

Adam Reposa’s habeas writ to the Court of Criminal Appeals was rejected the other day.

Adam, btw, is the Austin criminal defense attorney who made a “simulated masturbatory gesture” in Court 6. Technically, it was aimed at the prosecutor, but the judge was not amused.

He was sentenced to 90 days.

The Court of Criminal Appeals is, of course, Texas’ court of Last Resort.  Although he does have other options, should Adam choose to pursue them.

Among other things, the court found that Adam’s hand gesture was “an intentionally disrespectful act serving no purpose but to insult the prosecutor,” and that despite the fact that the gesture was not directed at Judge Breland, it was nevertheless an “act of disrespect” and “an affront to the court.”

Here’s the transcript:

It’s hard to know what to think about this. On the one hand, you hate to see him go to jail, especially for something as stupid as this (I like Adam). On the other, it’s a little like seeing the guy who runs every stop sign finally get in a wreck. You’re like, “Dude, how did you not see this coming?”

(Keith Lauerman had this to say: “Reposa succeeded in rallying the Defense Bar against his behavior with sheer acts of defiance and arrogance… He made his bed and some would agree that it was time to sleep in it.”)

Judge Breland – perhaps one of the nicest people you will ever meet – said this:

The silver lining – so far as Adam is concerned – is that if he does go to jail, he’s likely to come out with more clients than he has now.  Plus, there’s nobody who’d be less affected by it.  “Water off a duck’s back” comes to mind.  (”Bulletproof” – maybe not.  But shameless & fearless – definitely.)

Still, ninety days is too much.  People who commit real crimes get less than that.

I happened to catch a segment on CNN’s “Anderson Cooper 360″ about the Willingham case, called “Keeping Them Honest.” It’s interesting. The purpose seems to have been to impugn David Martin, Willingham’s trial lawyer. But what it actually did, at least from my point of view, was to demonstrate CNN’s sloppiness. Randi Kaye (CNN): “The prosecution had two arson investigors on the stand to prove that Willingham was guilty. Did you have an expert testify?” David Martin (defense atty): “We couldn’t find one that said it wasn’t arson.” Randi Kaye (in authoritative voice-over): “Couldn’t find one? But since the trial nine, that’s right, nine different arson experts have concluded the fire was not arson.” What Kaye either doesn’t know, or chooses to omit, is that between the trial, and now, there’s been a sea-change in the way experts go about testifying about fires. Specifically, much of what they thought they knew about how to tell the difference between an “innocent” fire, and arson, turned out to be wrong. In other words, it’s not so easy to identify arson as they used to think. The New Yorker, among others, has throroughly explored this part of the story. The misrepresentation changes the story from one about how careful you have to be, before condemning someone, to one about a bad lawyer. It’s too bad, because the real story was more interesting.

The Texas legislature has a bad habit of creating a crime whenever it sees a problem out in the world somewhere.  Perhaps especially when the problem affects a special interest or a lobby.

For example, did you know it’s a felony to bad-mouth a bank?  (Texas Finance Code – Section 59.002.)

Or that it’s a third-degree felony to do business in a grain warehouse without a license?   (Texas Agriculture Code – Section 14.072.)

Or how about “Thrashing Pecans“, the crime of causing pecans to fall from a pecan tree “by any means, including by thrashing,” without the written consent the owner, the mayor, or a judge?

According to Grits, there are (or were – in 2007) 2324 separate felony offenses in Texas, including 11 that involve oysters.  And the number keeps on growing.

I’ve already posted about Improper Photography – a law that criminalizes transmitting pictures with a lascivious intent – and about Penal Code 28.08 Graffiti – which makes it a crime to “make markings” on school property.

The thing about drafting laws to create new crimes, or harsher punishments, is that it allows politicians to “send a message” without costing them anything.  Unlike hiring new officers, or judges, or social workers or teachers, drafting legislation is practically free.

Of course, there is a cost, it’s just not obvious, or immediate.

Grits for Breakfast writes, “Inmate families offer the best and most frequently cited source of assistance for offenders who want to turn their lives around, but too often the state treats them as criminals, too, instead of as partners in promoting their loved ones’ rehabilitation.  Inmate families viewed as revenue source instead of anti-recidivism partners.

Counties are raiding inmate commissary funds to pay for court costs.  Commissary is what inmates’ girlfriends, wives, or parents send so inmates can buy stamps,  Ramen Noodles, and fans, among other things.

Grits is a smart guy, and he makes a great point – that the state’s punishing the very people who’re our best hope of turning inmates’ lives around.  They should be encouraging families, not punishing them.

But I also sort of think it misses the mark – not just that it’s cheap to go after prisoners’ envelope money (while also overcharging them for the envelopes in the first place).  But also that there’s just something deranged about putting somebody in a cell, depriving him of making a living, and then demanding money from him.

What part of ‘you can’t have your cake and eat it’ do they not understand?

Well, one Craig’s listing, one Friday afternoon, and $100 later I’m back online, upgraded, and – incredibly – all 300K + spam comments are gone from my database.  (Thanks Bob!)  I even sort of understand what I did wrong the first time.

To celebrate, I’m going to talk about how incredibly thick-headed & hypocritical our Texas legislature is.  Ever write something on your desk when you were in high school?  Guess what?

You’re a felon.

Or you would be, if you did it today, in Texas.

Sec. 28.08.  GRAFFITI.  (a) A person commits an offense if, without the effective consent of the owner, the person intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner with:
(1)  aerosol paint;
(2)  an indelible marker; or
(3)  an etching or engraving device.
(b)  Except as provided by Subsection (d), an offense under this section is:
(1)  a Class B misdemeanor if the amount of pecuniary loss is less than $500;
(2)  a Class A misdemeanor if the amount of pecuniary loss is $500 or more but less than $1,500;
(3)  a state jail felony if the amount of pecuniary loss is $1,500 or more but less than $20,000;
(4)  a felony of the third degree if the amount of pecuniary loss is $20,000 or more but less than $100,000;
(5)  a felony of the second degree if the amount of pecuniary loss is $100,000 or more but less than $200,000; or
(6)  a felony of the first degree if the amount of pecuniary loss is $200,000 or more.
(c)  When more than one item of tangible property, belonging to one or more owners, is marked in violation of this section pursuant to one scheme or continuing course of conduct, the conduct may be considered as one offense, and the amounts of pecuniary loss to property resulting from the marking of the property may be aggregated in determining the grade of the offense.
(d)  An offense under this section is a state jail felony if:
(1)  the marking is made on a school, an institution of higher education, a place of worship or human burial, a public monument, or a community center that provides medical, social, or educational programs; and
(2)  the amount of the pecuniary loss to real property or to tangible personal property is less than $20,000.
(e)  In this section:
(1)  “Aerosol paint” means an aerosolized paint product.
(2)  “Etching or engraving device” means a device that makes a delineation or impression on tangible property, regardless of the manufacturer ’s intended use for that device.
(3)  “Indelible marker” means a device that makes a mark with a paint or ink product that is specifically formulated to be more difficult to erase, wash out, or remove than ordinary paint or ink products.
(4)  “Institution of higher education” has the meaning assigned by Section 481.134, Health and Safety Code.
(5)  “School” means a private or public elementary or secondary school.

Of course, kids don’t usually get arrested for graffiti.  For one thing, they don’t usually know who did it.  (In my case, the kid signed his name, which made things a little easier for them.  Plus, the would-be object of his affections was not so fond of him – she ratted him out when they came to talk to her.)  In any case, police and prosecutors are expected to use discretion.  Which you can read as code for not arresting the kids of rich & powerful people.

Which is why legislators  feel comfortable passing laws like this in the first place – they expect other people’s kids to get arrested for it.  Not their kids.

Another story about Texas Penal Code 28.08.

In my case the kid did not get the felony conviction he “deserved” to get under Sec. 28.08.  But honestly, he was lucky.  He didn’t “get off” because he wasn’t guilty.  Or because they couldn’t prove it.   Had it happened in another county – say Williamson County, for example, instead of Austin – he might not have been so lucky.