austindefender

From the NYT:

LOS ANGELES — A federal jury here issued what legal experts said was the country’s first cyberbullying verdict Wednesday, convicting a Missouri woman of three misdemeanor charges of computer fraud for her involvement in creating a phony account on MySpace to trick a teenager, who later committed suicide.

I don’t know if you’ve followed this story or not, but let me start by saying I have nothing but contempt for a grown woman who spends her time – or any time at all – taunting her school-age kids’ friends on MySpace. I mean, when I was 13 I too old for that crap. (Ok, maybe 15.) Never mind forty-something, or however old she is.

But – and this is the crucial point here – doing something pathetic, or even contemptible – is not the same as being a criminal.

In this case a Federal US Attorney – a man nominated for his post by George Bush, president of the United States – personally led the prosecution of this housewife for her involvement in “creating a phony account on MySpace.”

Really? Creating a phony account on MySpace is a crime? A Federal crime, worthy of the personal attention of the US Attorney for the Central District of California?

Apparently this whole “orange alert” thing is a bunch of BS, then, since the US Attorney for California has time to prosecute phony MySpace accounts.

All I’ve got to say is I’m NOT taking my shoes off next time I get on a plane.

And btw, aren’t ALL MySpace accounts more or less phony? When was the last time anybody told the truth about themselves on MySpace?

Here’s what Mr. O’Brien has to say: ““If you are going to attempt to annoy or go after a little girl and you’re going to use the Internet to do so,” he said, “this office and others across the country will hold you responsible.”

US Attorney for the Central District of California Thomas O'Brien

Jeez. I hope Mr. Thomas O’Douchebag doesn’t find MY posts annoying.

Citibank’s getting another $40 billion or so, along with guarantees on another $300 billion worth of debt.

It’s so frustrating watching this process unfold. Citibank was only worth about $20 billion when they announced the plan. We could have bought the bank twice over with just the cash we’re giving them.

Meanwhile… mortgage modifications seem to have become all the rage. Tom Lindmark has a piece in Seeking Alpha called Ten Reasons to Hat Mortgage Modifications. All ten are good reasons, but two of them particularly stick out.

The Next Generation of Homebuyers Gets Disenfranchised: A decline in the price of housing is viewed as something akin to the plague while declines in other goods, say crude oil or its derivative, gasoline, is applauded. In fact, the decline in the price of housing is opening up opportunities for the next generation of buyers. Arresting the decline punishes them unjustly.

Mortgage Rates Soar: Abrogating contracts either through the use of the bankruptcy courts to cram down principle or jawboning servicers will destroy investor confidence in mortgages as an investment vehicle. The attendant risk premium that will be attached to home loans will drive interest rates to credit card levels.

In other words, there’s no free lunch. Bailing out the people who caused the mess will mean less affordable housing at higher interest rates for the next generation of buyers, along with higher taxes and more government debt.

I came across this in Grits for Breakfast the other day:

Theoretically, every prosecutor is required to disclose exculpatory evidence, known as Brady material, to the defense.

In reality, defendant have no way to enforce this right. The problem is that defendants in Texas have very little right to discovery. Parties in a car wreck, or a divorce case in Texas, have a much greater right to discovery than criminal defendants.

For example, police reports do not have to be turned over to the defendant. Grand jury testimony can also be withheld. That is why Brady violations are nefarious. When a prosecutor purposefully denies Brady material to a defendant, the defendant may NEVER learn about this evidence. Ergo, innocent defendants may never be freed, or learn of the evidence that could free them.

The original was by Robert Guest.

People are sometimes incredulous when I tell them police reports are not part of discovery under Texas law.  But it’s true:

Art. 39.14. DISCOVERY. (a) Upon motion of the defendant
showing good cause therefor and upon notice to the other parties,
the court in which an action is pending shall order the State before
or during trial of a criminal action therein pending or on trial to
produce and permit the inspection and copying or photographing by
or on behalf of the defendant of any designated documents, papers,
written statement of the defendant, (except written statements of
witnesses and except the work product of counsel in the case and
their investigators and their notes or report), books, accounts,
letters, photographs, objects or tangible things not privileged,
which constitute or contain evidence material to any matter
involved in the action and which are in the possession, custody or
control of the State or any of its agencies. The order shall
specify the time, place and manner of making the inspection and
taking the copies and photographs of any of the aforementioned
documents or tangible evidence; provided, however, that the
rights herein granted shall not extend to written communications
between the State or any of its agents or representatives or
employees. Nothing in this Act shall authorize the removal of such
evidence from the possession of the State, and any inspection shall
be in the presence of a representative of the State.

–Texas Code of Criminal Procedure

That civil litigants have a greater right to discovery than criminal defendants is sort of ridiculous, but that’s still how it is in Texas.

Again, sorry for the crappy formatting.

Better version here: nondisclosure-order.

Cause No. ________________

The State of Texas					§		In The District Court
                                                        §
vs.                                                     §		______ Judicial District
                                                        §                                                                                      §
__________________________                              §		________ County, Texas
Defendant						§

ORDER PROHIBITING DISCLOSURE OF
CRIMINAL HISTORY RECORD INFORMATION

Today, the Court heard the defendant’s petition asking the court to issue an order of prohibiting criminal justice agencies from disclosing the defendant’s criminal history record information relating to the offense that gave rise to the defendant’s deferred adjudication. See Tex. Govt. Code § 411.081(d)-(h).

After notice to the state, the Court conducted a hearing on the defendant’s petition. The defendant, his counsel (if any), and counsel for the State were present. After hearing all the evidence, the Court is of the opinion that the petition is meritorious.

Accordingly, the Court Finds:

1) the defendant entered a plea of guilty or nolo contendere in this cause and the Court placed the defendant on deferred adjudication community supervision; and

2) at the end of the period of supervision, the Court dismissed the proceedings in this cause and discharged the defendant from deferred adjudication community supervision; and

3) the defendant satisfies the requirements of Sections 411.081(d) & (e) of the Texas Government Code;

4) the defendant was entitled to file the petition and tendered a twenty-eight dollar ($28.00) fee to the clerk; and

5) issuance of this order is in the best interest of justice.

The Court Orders that criminal justice agencies are prohibited from disclosing to the public criminal history record information related to the defendant’s commission of the offense of _______________ on __________________, for which the defendant was placed on deferred adjudication community supervision in this cause.

The following information is provided to identify the defendant:

NAME:

SEX:

RACE:

DATE OF BIRTH:

DRIVER’S LICENSE NUMBER:

SOCIAL SECURITY NUMBER:

The Court finds that defendant is entitled to nondisclosure of the following information:

ALLEGED OFFENSE:

DATE OF ALLEGED OFFENSE:

DATE OF ARREST:

COUNTY WHERE ARRESTED:

MUNICIPALITY WHERE ARREST OCCURRED:

ARRESTING AGENCY:

CASE NUMBER:

COURT:

The Court further Orders the Clerk of the Court to send a copy of this Order by secure electronic mail to the Crime Records Service of the Department of Public Safety. Pursuant to Section 411.081(g) of the Texas Government Code, the Crime Records Service of the Department of Public Safety shall send a copy of this Order by mail or electronic means to all law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state, and to all central federal depositories of criminal records that there is reason to believe have criminal history record information that is the subject of this order, including the following agencies known to the defendant to have criminal history record information subject to this order:

(a) Travis County Sheriff’s Department

5555 Airport Blvd.
Austin, TX 78751

(b) Texas Department of Public Safety

Crime Records Service MSC 0234

P. O. Box 4143

Austin, TX 78765-4143

(c) Travis County District Attorney’s Office

509 W.11th St
Austin, TX 78701

(d) Austin Police Department

PO Box 1088

Austin, TX 78767

(e) Travis County District Clerk’s Office

PO Box 679004

Austin, TX 78767

(f) Travis County Pretrial Services

509 W. 11th St. Rm 1.800

Austin, TX 78701

The Court further Orders that this document is confidential. It is not public information as that term is defined under the Texas Public Information Act and shall not be disseminated pursuant to a request made under the Public Information Act.

Signed this ______ day of ______________________, 20___.

_________________________________________

Judge Presiding

Sorry about the formatting. You can find a cleaner version here: petition-for-nondisclosure.

.

Cause No. ________________

The State of Texas           §           In The District Court

§

VS.                                 §           ______ Judicial District

§

________________,           § ________County, Texas

Defendant §

───────────────────────────────────────────────────

PETITION FOR NONDISCLOSURE

OF CRIMINAL HISTORY RECORD INFORMATION

───────────────────────────────────────────────────

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW __________________________________ (hereinafter “defendant”) and moves the Court to issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense described more particularly below. The defendant would respectfully show the Court the following:

I.

On _________________, the defendant entered a plea of guilty or nolo contendere in this cause to the felony offense of __________________________________. This Court deferred further proceedings in this cause without entering an adjudication of guilt and placed the defendant under the supervision of the court or an officer under the supervision of the court.

II.

On _____________________, at the end of the period of supervision, the Court dismissed the proceedings in this cause and discharged the defendant from further deferred adjudication community supervision.

III.

It has been five or more years since the date that the Court dismissed the proceedings in this cause and discharged the defendant from further deferred adjudication community supervision.

IV.

Since the date that the Court dismissed the proceedings in this cause and discharged the defendant from further deferred adjudication community supervision, the defendant has not been convicted or placed on deferred adjudication community supervision under Section 5, Article 42.12, Code of Criminal Procedure, for any offense other than an offense under the Transportation Code punishable by fine only.

V.

Defendant has not been previously convicted or placed on deferred adjudication community supervision for:

1. an offense requiring registration as a sex offender under Chapter 62, Code of Criminal Procedure;

2. an offense under Section 20.04, Penal Code, regardless of whether the offense is a reportable conviction or adjudication for purposes of Chapter 62, Code of Criminal Procedure;

3. an offense under Section 19.02, 19.03, 22.04, 22.041, 25.07, or 42.072, Penal Code; or any other offense involving family violence, as defined by Section 71.004, Family Code.

VI.

Issuance of an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense for which defendant successfully completed deferred adjudication community supervision is in the best interest of justice.

VII.

Pursuant to Section 411.081(g)(2) of the Texas Government Code, the defendant authorizes that the clerk of the court send a copy of the order of nondisclosure to the Crime Records Service of the Department of Public Safety by secure electronic mail.

VIII.

In accordance with the Local Rules of this Court, this matter has been set for a hearing fourteen days after the date that the petition was filed.

THEREFORE, it is respectfully requested that the Court issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense for which defendant successfully completed deferred adjudication community supervision.

Respectfully submitted,

____________________

Signature Line

I’ve been following what’s been going on in the financial markets, and although this is off-topic, I thought I’d post it anyway.

P/e ratios, 1880-2008, S&P 500

In a post on Econbrowser, James Hamilton argues that the chart above – which shows that p/e ratios on the S&P 500 have declined to slightly below their longterm average – indicates that shareholders who buy now should expect “slightly above-average” returns.  He says the silver lining of the recent market declines is that they allow investors to get more shares for their money.

While that’s certainly true, I have a hard time feeling optimistic based on what the chart seems to say.

What it seems to say is that each of the bear markets of the 20th century lasted about 20 years, and that each time p/e ratios fell to between 5 and 7 before recovering.  If history is a guide to the future (and I don’t know that it is) we have a lot further to fall (50%+), and another decade or so before we see a sustained recovery.

It can be frustrating being a criminal defense attorney.

Today I spent the morning trying to put someone on probation.  The state had already agreed to it.  He has no criminal history.  But the judge said “no.”

Why?  He’s schizophrenic, and his family doesn’t want him.  Probation can’t help him, because he’s not a sex offender or an addict, and MHMR doesn’t have the funding.  So he’s got nowhere to go.

You’d think that prison would be a poor way to solve the problem of homelessness and mental illness.  (Especially since it’d cost less to put him in a cheap hotel, than to add to the already overburdened prison system.)  But unless I can find something else for him, that’s what they’d like to do.

Of course prisons are full of the mentally ill.  Most of whom are unlikely to be much improved when they get out.

I came across interesting article about Judge Charlie Baird in the Austin Chronicle article the other day.  I’ve known him at least since I tried a case in front of him when he was a visiting judge, but the article was worth reading.  (It’s interesting how much better the Chronicle is than the Statesman, when it comes to local reporting.)

I also hadn’t realized that Baird had played a role in the Criner case.

Baird was not one to go along to get along; he consistently wrote more opinions each year than any other judge on the court, and he pushed the majority to address specific points of law by writing strong, detailed opinions – even in cases the majority would rather have addressed with no written opinion, which lawyers refer to as “white cards,” for the small, white postcard notice that notes only that an appeal has been denied. That’s what happened in several high-profile cases – including the infamous case of Roy Criner, wrongfully convicted of rape. (When DNA tests proved someone else, not Criner, had had sex with the victim, Keller dismissed that evidence as meaningless – the victim might have been promiscuous, she opined, and Criner might have used a condom.) In that case (and several others) Keller was forced to issue her retrograde opinion only because Baird had issued his dissent, and the majority opinion in Criner reads more like a retort to Baird than a stand-alone, reasoned judicial argument.

Judge Baird

The Criner case became famous in 2000 when Bush was running for office.  Frontline did a story on the case, which included interviews with Judge Baird and Presiding Judge Sharon Keller.  Criner was eventually released, after ten years in prison.  (FWIW, the opinion itself seems to have disappeared – withdrawn from publication, I suppose.)

The article goes on to address the tension between the judge and the DA’s office.

Retired Judge Wisser acknowledges there may be some leftover resentment among prosecutors. There is “much more friction and personal animosity with the D.A.’s office. He ran against the [D.A.'s] trial chief [Meyer], so some of that may be expected,” Wisser says. “He has a strong personality. He’s an interesting fellow, and he’s certainly shaking things up here and doing things that he thinks are right.”

I like Judge Baird a lot, and I appreciate the extra time he takes with defendants – even though it can be l harder to appreciate when you’re next in line, and you’re already running late.

Still, Baird says he won’t change – that is, as he did on the CCA, he’ll refuse to adjust his philosophy or approach in order to appease anyone before or outside his court. But he does intend to blaze a path forward. He is adamant, for example, about scheduling more jury trials – as of May 1, he already had 55 jury trials set on his court calendar, far more than any other district judge. And that is a good thing, he says; Baird would like to see as many trials on the docket as possible. “I like that, for two reasons. Number one, it gets the community directly participating in the process,” he says. “If they sit there and they see an aggravated robbery case and they’re called upon to assess punishment and they assess it at 10 years or 50 years or whatever, it informs my judgment on what the community feels about aggravated robbery. So, I enjoy that; I think that is positive,” he continued. “The other thing is, I want them to leave the courthouse feeling confident about their criminal justice system” – to know that they are the process, he says.

He’s right about that.  Too often judges view a trial as a failure of negotiations, or of docket management.  Ultimately, though, trials are why we’re there.

This article, by the way, makes an interesting point about plea bargaining: While some defendants are better off plea bargaining, if all defendants insisted on a trial, most would go free.

One of the less-understood aspects of criminal courts involves plea bargains.  On television, and in movies, most people get a trial, so some folks are surprised that 90%+ of cases end in plea bargains.

To some, the quantity of plea bargains means too many are getting off easy.  To others, it means too many got pressured into pleading, when they might have won if they’d gone to trial.

Both things happen, of course. Some people get off easy.  Others wind up pleading to cases they might have beat.

But there’s a very good reason most cases end in plea bargains: Money.

It all comes down to numbers.  At any given time, each of the felony courts here in Travis County has close to 1000 pending cases.  Meanwhile, the courts try about two cases a month.  At that rate, it would take 83 years for the court to work its way through its current docket.  Meanwhile, hundreds of new felony cases get filed in Austin every month.

Even if the courts doubled, or tripled, or sextupled the number of trials they held every year, they still couldn’t keep up.

In order to actually try more than a small fraction of cases, Travis County would have to spend many times what it currently does on judges and staff.

There is no money for that.  Which is why most cases end in plea bargains.