The answer to the question was, “Yes, and he wasn’t.”

The jury didn’t hear that answer, though, because prosecutor Jeff Ashton objected, and the jury was sent away. Judge later struck the question, and told the jury not to consider it. (Whatever that means; a question, after all, is not evidence.)

Had the jury heard the answer, what would they have thought? After all, Lee was not the father. The result of the test is evidence of nothing. Even if he had been, it would have been evidence that Casey had engaged in an adult incestuous relationship; not that she was a victim as a child. Finally, even if she was a victim of child abuse, that doesn’t mean she didn’t kill her daughter.

But the jury never heard it. Instead, they were left wondering.

What conclusions are they likely to draw from that?

That the answer to the question would have hurt the prosecution?
That the answer to the question was, “Yes, Lee Anthony was the father”?
That the prosecutor doesn’t want them to have certain information?
That he doesn’t trust their judgment?
That he doesn’t trust his case?
That they’re being asked to make a life and death decision without all the facts?

The prosecutor has chosen to make a lot of objections. I’m not sure that’s a good strategy for the state in a death penalty case.

Sec. 25.11. CONTINUOUS VIOLENCE AGAINST THE FAMILY. (a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code.

(b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a) or the exact date when that conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).

This is an example of the trend in Texas toward the “he did something bad” approach to criminal justice.  “We don’t have to agree exactly on what he did, or when he did it, so long as everybody agrees he did something.”

Combined with the Texas Court of Criminal Appeals approach to indictments (before the presentation of the indictment, but within the statute of limitations) we’re coming ever closer to defendants being tried without knowing what they’ve supposedly done until after they’ve been convicted – and possible not even then.

In the case of “Continuous Violence” statute, for example, a defendant could be convicted without anybody ever agreeing on exactly what it is that he had done.

Texas Penal Code 33.07 makes it a crime – a felony – to impersonate someone’s “persona” on the internet.

And I’ve written about Texas Penal Code 21.15 “Improper Photography” before, which is clearly unconstitutional.

The problem is that the process for challenging these laws is so time-consuming, and the Texas appellate courts so hostile, that few defendants are willing to challenge them.  And when they do, prosecutors often back down.  That way the laws stay on the books.

New lawyers are recruited out of law school and told they need to generate X number billable hours, where X is enough to cover not just the new lawyer’s salary, but overhead and profits for the senior partners as well.

It’s soul-deadening, but lucrative work, and work most of my former classmates aspired to do.

Clients, not surprisingly, hate it.

Companies are attacking the billable hour out of a growing frustration with rising legal costs. “Put most bluntly, the most fundamental misalignment of interests is between clients who are driven to manage expenses, and law firms which are compensated by the hour,” said Cisco’s general counsel, Mark Chandler. In a speech at Northwestern University’s law school last January, he called the billable hour, “the last vestige of the medieval guild system to survive into the 21st century.”

–Slate

Some lawyers think it’s stupid.

The billable hour makes no sense, not even for lawyers. If you are successful and win a case early on, you put yourself out of work. If you get bogged down in a land war in Asia, you make more money. That is frankly nuts.

–Forbes

Criminal defense attorneys, and other lawyers who represent people rather than corporations – and the poor rather than the rich – pretty much uniformly reject it.

The other model is the flat fee model. Under a flat fee agreement, the total amount the lawyer will be compensated is negotiated up-front. The lawyer gets no more, no less. If the case takes up more time than expected, the lawyer’s on the hook it. On the other hand, if he resolves it quickly, his pay is the same, but his hourly rate goes up.

The lawyer, in other words, assumes the risk that – at the outset – it’s often impossible to know how long the work will take. Which is appropriate, since the lawyer is in a better position than the client to take a guess.

The client, on the other hand, gets the certainty of knowing exactly what it’s going to cost, and can shop around, if he wants, for the best rate.

The State Bar of Texas, in its proposed rules changes, has decided one of these models is ethical, and the other is not.

Can you guess?

That’s right – flat fees are unethical.

You can read the gory details here. But the short version is that the Bar isn’t quite willing to outlaw flat fees outright.

Instead, they’re redefining flat fees as advance payments, which must therefore be kept in special trust accounts, which the lawyer may not touch until he earns them, by billing for his time at an hourly rate.

Sound familiar?

It’s a bit like saying you can have an apple if you like, so long as it’s orange, has orange juice inside, and is actually an orange.

In Travis County, where judges release more defendants on personal recognizance, or PR, bonds than any of the five most populous counties in Texas, Baird stands apart from his peers for regularly giving the jail release to defendants charged with the most serious crimes…

The article goes on to describe several cases where inmates were released from jail, and whose cases were ultimately dismissed, or no-billed by a grand jury, or who were acquitted. These are cases where defendants were spared months – or years – of needless incarceration. (And taxpayers were spared the cost of incarcerating them.)

But it also describes cases where Baird released people from jail who used that new-found freedom to commit new crimes.

Police Chief Art Acevedo said the use of personal bond for serious offenders “is a real concern for us from a public safety standpoint.”

During an interview, Acevedo ticked off a list of cases in which his officers have felt personal bond was misused. Most of them came from Baird’s court.

One case Acevedo mentioned involved Carlos Mares, 45, who was released on personal bond by Baird after pleading guilty June 23 to delivery of a controlled substance. An affidavit accused Mares of buying three crack rocks and giving them to undercover police officers after the officers asked him to get them the drugs near Braker Lane and Interstate 35. Mares had previous convictions for a variety of charges, including attempted burglary of a building, misdemeanor assault and drug possession.

Baird said he ordered Mares to live at a rehabilitation center and called the center to make sure space was available. Two days after he was released from jail, Mares fatally stabbed Otto Wiley, 57, at the Budget Lodge hotel on Interstate 35 after the two had been drinking together, according to a police affidavit.

Of course, it’s easy to make an after-the-fact judgment that somebody shouldn’t have been released from jail.

But the article says Judge Baird signed the bond after the Mares had pleaded guilty. What that means is that Mares had likely signed a plea bargain for probation, and was waiting for sentencing. (In Travis County, there is usually a one or two week delay in felony probation cases.) He was going to get out, in other words, in a week or two anyway.

Their reasoning is pretty straight-forward: the statute says anyone whose license has been suspended for a reason other than “physical or mental disability or impairment or a conviction under Section 49.04, Penal Code” is eligible for an occupational license. Since a surcharge suspension is not one of those, it’s eligible for an occupational.

DPS had argued that such a result would defeat the purpose of the surcharge, since a suspended driver could avoid paying the surcharges altogether, by perpetually re-applying for occupational licenses.

Maybe. On the other hand, each time you apply for an occupational license you have to go in front of a judge.

The good news is that it’s at least a ray of light for people who can’t pay their surcharges because they can’t drive, and can’t drive because they can’t pay their surcharges.

Here’s the link to the court’s opinion. Barry Wood, Jr., v. Texas DPS.

She said, “I am decidedly against school turning my kids into giant weenies who won’t know how to stand up for themselves,” and “I was never bullied so I don’t know what it feels like. My parents always told me that if someone tried to do something to me, or said something to me, I should take matters into my own hands and they would have my back.”

I’m not sure what she means by “tried to do something to me.” “Bullying” is a vague term, so it’s impossible to say. But if it includes pushing someone down the stairs, punching someone in the back of the head, or cornering someone and threatening to break her wrist unless she gives up her lunch money, then (in the adult world) those things are called assault, extortion, and robbery.

Adults expect to be protected from those kinds of things. They don’t expect to be told to “stand up for themselves,” particularly when they’re unarmed.

Even name-calling is generally not tolerated among adults. If you have a hard-on for harassing a co-worker, you probably shouldn’t expect to keep your job very long.

Not only do adults demand a greater level of protection for themselves than what they’re willing to provide to children, the advice they give children (“stand up for yourself”) is not something they follow themselves.

Of course, if we did, our society would be a lot like the wild west; everybody would be a lot nicer, and there’d be a lot more bodies in the street.

Personally, I don’t see the logic of telling kids one thing (that they should take things into their own hands) while telling adults something else (that they should go to the authorities), and I don’t understand telling kids to handle things themselves, but then forcing them to go to school unarmed. If you’re going to force kids to go to school and refuse to protect them, the least you can do is let them bring a weapon.

And this was worth reading:

The Things He Carried

Her remarks came after John Tyner’s now-famous “Don’t touch my junk” video, in which he recorded his face-off with the TSA.

If they don’t  like it, they could “travel by some other means,”  she said.

I wonder what the airlines will have to say about that.

Anyway, what’s sad about the whole thing is that despite America’s obsession with terrorists and airplanes, it’s still practically impossible to die from a terrorist.  You’re about a million billion times more likely to die from an ordinary car accident, and despite all endless hours wasted at airport security lines, terrorists are not actually obligated to attack only airplanes.

While I’m personally not all that worried about “my junk,” I do hate feeling like I live in a police state.  I tried to avoid flying before; I’ll try harder now.

Richard was convicted of a murder in 2007, and sentenced to 75 years in prison.  There was lots of evidence at the crime scene: DNA, hair, a bloody fingerprint, and a shoe print – none of which matched the defendant.  Instead, at trial, the prosecution relied on a “dog scent line-up,” in which a deputy walked a bloodhound by a line up of paint cans, and the dog “alerted” to the right one – the one containing a smell obtained from the defendant.

I immediately thought of “Clever Hans” – the horse who was thought to be able to add, subtract, multiply and divide – and do other mathematical puzzles – until finally somebody figured out he could only do the math when his handler knew the answer.  (The horse was picking up on unconscious cues of people around him – not doing actual math.)

Despite the paucity of evidence, the jury convicted, and Winfrey was sent to prison – and would be there yet, but for the intervention of a lawyer who was able to – amazingly – convince the Court of Criminal Appeals to overturn the conviction.

Grits for Breakfast, as is so often the case, has an excellent summary.

According to Grits, dog scents are right only about 50% of the time.  “Why not flip a coin?” he asks.

Unfortunately, Winfrey’s then-sixteen year old daughter still sits in prison, convicted for the same crime, on the basis of the same evidence.  Once can only hope her conviction is overturned soon.

An Order of Nondisclosure is an order from a judge, telling DPS (Texas Department of Public Safety) to seal information related to an offense.  It’s a way to clear the slate, so to speak – if you’re eligible.

Are You Eligible?

First off, you’re only eligible if you got probation, and the kind of probation you got was “deferred adjudication.”  What does deferred adjudication mean?

It means the judge in your case “deferred” – or put off – finding you guilty, even though you said you were guilty (or said, “no contest.”)   If you got regular probation – meaning the judge pronounced you “guilty,” you’re not eligible.

You have to have completed your probation successfully.  If you got revoked, you’re not eligible.

There are also waiting periods that apply.  For most misdemeanors, you’re eligible as soon as your probation is complete.  For others, including Assault, Cruelty to Animals and Unlawful Restraint, the wait is 2 years.

For felonies, the wait is ordinarily 5 years.

There are some kinds of cases where you are never eligible for an Order of Nondisclosure.  These include injury to a child, violation of protective order, family violence, and sex offenses.

It is true that a deferred adjudication is not a conviction.  The fact that you were on deferred adjudication, however, is public information, unless or until you get it sealed.

To see your DPS record, go here.