austindefender

Criminal defense in Austin Texas.

More Homeland Security

Posted By on November 17, 2010

This was worth watching:

And this was worth reading:

The Things He Carried

Napolitano to travelers: “Don’t fly.”

Posted By on November 16, 2010

That was the Homeland Security Secretary’s response to complaints about TSA’s new pat-down procedure “Resolution”, “which requires a tactile examination of passengers’ genitals.”

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 Winfrey aka “Who Needs Evidence?”

Posted By on September 27, 2010

Richard Lynn Winfrey v. The State of Texas is one of those cases where you think, “How could that happen?”

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.

Orders of Nondisclosure

Posted By on September 20, 2010

Orders of Nondisclosure are governed by Texas Government Code Section 411.081.

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.

Copying Is Not Theft

Posted By on August 18, 2010

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

What Lawyers Do

Posted By on August 16, 2010

What Defense Lawyers Do:

By requiring the state to prove its case and helping defendants understand their options in the criminal justice system, defense attorneys can help ensure that the state doesn’t send innocent people to jail and that individuals who commit criminal offenses receive appropriate sentences that punish without leading to unnecessary prison and jail overcrowding.

–The Texas Fair Defense Project.

“Helping people understand their options” is fair enough.  The bit about ensuring “innocent” people don’t go to jail, though, is not quite right.

A defense lawyer’s job, is to keep you from going to jail, whether you did it or not.  It’s a bit like being a plumber, or a doctor.  The goal is to mitigate the damages, not to assign blame.

The part about “appropriate sentences” also rings false.  Whether a sentence is appropriate is more a matter of concern for judges, or to jurors.  What’s “appropriate” one might be disproportionate to another, but – for defense lawyers – less is always more (as a defense attorney friend of mine likes to say).

But then again, that’s the nature of an adversarial system.  So long as both sides are roughly equal, justice is likely to be found somewhere in between.  After all, it’s not “from the benevolence of the baker” that we expect our bread.

Forgery?

Posted By on August 4, 2010

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.”

Arizona’s Anti-Immigration Bill

Posted By on August 2, 2010

SB 1070

A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR
17 OTHER POLITICAL SUBDIVISION OF THIS STATE MAY ADOPT A POLICY THAT LIMITS OR
18 RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL
19 EXTENT PERMITTED BY FEDERAL LAW.

Not sure what this means.  I’m not sure how a town or county could stop INS or ICE, or why they would want to.

B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY
21 OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS
22 STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS
23 UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE,
24 WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE
25 PERSON’S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT
26 PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

It’s hard to see what difference this part of the law makes.  The police were free to question people about their immigration status before this law, and they’re free to do it after.

If they’re not so inclined, they have to decide it’s “impractical.”  It is, in other words, discretionary – pretty much the same as it was before.

The last sentence says that they’re to “verify” status with the Federal Goverment.

The problem with this is that the Federal Government doesn’t keep a list of who is and who isn’t a citizen.  There is no archive of photographs and fingerprints of every person who was born in this country.  Similarly, there is no list of everyone who is here illegally.  Even if there were, it would only be useful if the officer could first make a positive ID.  Since Americans aren’t required to carry IDs, and aliens rarely carry them if they show they’re here illegally, even making an initial identification is often difficult.  “Verifying” somebody’s immigration, in other words, is easier said than done.

Any person who is arrested shall have the person’s immigration status determined before the person is released.  [From the House Engrossed version.]

I’m not sure – because it doesn’t say – what happens if someone’s immigration status isn’t determined by the time they’re to be released.  However, if it’s meant to say that they’re to stay in jail until somebody (who?) gets around to it… it’s unconstitutional.  The government cannot keep a person in jail indefinitely without a charge.

C. IF AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IS
28 CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM
29 IMPRISONMENT OR ASSESSMENT OF ANY FINE THAT IS IMPOSED, THE ALIEN SHALL BE
30 TRANSFERRED IMMEDIATELY TO THE CUSTODY OF THE UNITED STATES IMMIGRATION AND
31 CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION.

If the Feds do know someone is here illegally, and they’re arrested and booked into jail, the Feds routinely ask the jail to hold onto him until they can come and get him.  (It’s known as an “immigration hold.”)

As far as the part about “immediately” transferring him, it’s meaningless.  ICE will come and get an alien when ICE is ready to come and get him.  Arizona has no authority over Immigration, and no ability to make them come.

NOTWITHSTANDING ANY OTHER LAW, A LAW ENFORCEMENT AGENCY MAY
33 SECURELY TRANSPORT AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES
34 AND WHO IS IN THE AGENCY’S CUSTODY TO A FEDERAL FACILITY IN THIS STATE OR TO
35 ANY OTHER POINT OF TRANSFER INTO FEDERAL CUSTODY THAT IS OUTSIDE THE
36 JURISDICTION OF THE LAW ENFORCEMENT AGENCY.

This part is about getting immigrants off of Arizona’s hands as soon as possible.  Transporting inmates may get them off of Arizona’s hands faster, but it also means the state will have to pay for the transporting.  In any case, they can only transport inamates when the Feds are ready to take them. Arizona can’t just drive up to their front door, drop them off, and drive away.

E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON
38 IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED
39 ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.

The police can already make an arrest when they have probable cause – That’s sort of the whole point of having probable cause in the first place.  I have no idea what the Arizona legislature was thinking when they wrote this.  So far as I can tell, this part of the law doesn’t change anything.

F. EXCEPT AS PROVIDED IN FEDERAL LAW, OFFICIALS OR AGENCIES OF THIS
41 STATE AND COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS OF THIS
42 STATE MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING,
43 RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION STATUS OF
44 ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY OTHER FEDERAL, STATE
45 OR LOCAL GOVERNMENTAL ENTITY…

Federal law already provides for sharing immigration information – but if it didn’t, Arizona would be powerless to change it.  As far as Arizona itself failing to send or receive information, Arizona is free to change that.

G. A PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY
12 OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL
13 SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT LIMITS OR
14 RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL
15 EXTENT PERMITTED BY FEDERAL LAW…

Again, I don’t know how a county or town would go about limiting or restricting the activities of ICE or the INS.  Perhaps some counties or towns are trying to do that.  If they are, this is Arizona hoping that encouraging lawsuits will get them to stop.

13-1509. Trespassing by illegal aliens; assessment; exception;
41 classification
42 A. IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF
43 TRESPASSING IF THE PERSON IS BOTH:
44 1. PRESENT ON ANY PUBLIC OR PRIVATE LAND IN THIS STATE.
45 2. IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a).
1 B. IN THE ENFORCEMENT OF THIS SECTION, THE FINAL DETERMINATION OF AN
2 ALIEN’S IMMIGRATION STATUS SHALL BE DETERMINED BY EITHER:
3 1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL
4 GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN’S IMMIGRATION STATUS.
5 2. A LAW ENFORCEMENT OFFICER OR AGENCY COMMUNICATING WITH THE UNITED
6 STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES BORDER
7 PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

I’m not sure what the Arizona legislature means by “final determination,” but unless it’s trying to cancel the Constitution, the “final determination” in a criminal case is made by a jury, not by the police.

8 C. A PERSON WHO IS SENTENCED PURSUANT TO THIS SECTION IS NOT ELIGIBLE
9 FOR SUSPENSION OR COMMUTATION OF SENTENCE OR RELEASE ON ANY BASIS UNTIL THE
10 SENTENCE IMPOSED IS SERVED.
11 D. IN ADDITION TO ANY OTHER PENALTY PRESCRIBED BY LAW, THE COURT SHALL
12 ORDER THE PERSON TO PAY JAIL COSTS AND AN ADDITIONAL ASSESSMENT IN THE
13 FOLLOWING AMOUNTS:
14 1. AT LEAST FIVE HUNDRED DOLLARS FOR A FIRST VIOLATION.
15 2. TWICE THE AMOUNT SPECIFIED IN PARAGRAPH 1 OF THIS SUBSECTION IF THE
16 PERSON WAS PREVIOUSLY SUBJECT TO AN ASSESSMENT PURSUANT TO THIS SUBSECTION.
17 E. A COURT SHALL COLLECT THE ASSESSMENTS PRESCRIBED IN SUBSECTION D OF
18 THIS SECTION AND REMIT THE ASSESSMENTS TO THE DEPARTMENT OF PUBLIC SAFETY,
19 WHICH SHALL ESTABLISH A SPECIAL SUBACCOUNT FOR THE MONIES IN THE ACCOUNT
20 ESTABLISHED FOR THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT
21 MISSION APPROPRIATION. MONIES IN THE SPECIAL SUBACCOUNT ARE SUBJECT TO
22 LEGISLATIVE APPROPRIATION FOR DISTRIBUTION FOR GANG AND IMMIGRATION
23 ENFORCEMENT AND FOR COUNTY JAIL REIMBURSEMENT COSTS RELATING TO ILLEGAL
24 IMMIGRATION.

Locking people up is expensive – Maricopa County (of Joe Arpaio fame) charges $189 per inmate, per day.  The Arizona legislature fixes that – or pretends to fix it – by saying that the inmates have to pay.  Of course, it’s hard to make money from a jail cell, and once they’re deported it becomes even less likely that they’ll pay.

E. NOTWITHSTANDING ANY OTHER LAW, A PEACE OFFICER MAY LAWFULLY STOP
21 ANY PERSON WHO IS OPERATING A MOTOR VEHICLE IF THE OFFICER HAS REASONABLE
22 SUSPICION TO BELIEVE THE PERSON IS IN VIOLATION OF ANY CIVIL TRAFFIC LAW AND
23 THIS SECTION.

Police may stop people who commit traffic violations, whether they’re citizens or not.  Again, this does not change the existing law in any way.

13-2929. Unlawful transporting, moving, concealing, harboring
27 or shielding of unlawful aliens; vehicle
28 impoundment; classification
29 A. IT IS UNLAWFUL FOR A PERSON WHO IS IN VIOLATION OF A CRIMINAL
30 OFFENSE TO:
31 1. TRANSPORT OR MOVE OR ATTEMPT TO TRANSPORT OR MOVE AN ALIEN IN THIS
32 STATE IN A MEANS OF TRANSPORTATION IF THE PERSON KNOWS OR RECKLESSLY
33 DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE
34 UNITED STATES IN VIOLATION OF LAW.
35 2. CONCEAL, HARBOR OR SHIELD OR ATTEMPT TO CONCEAL, HARBOR OR SHIELD
36 AN ALIEN FROM DETECTION IN ANY PLACE IN THIS STATE, INCLUDING ANY BUILDING OR
37 ANY MEANS OF TRANSPORTATION, IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE
38 FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES
39 IN VIOLATION OF LAW.
40 3. ENCOURAGE OR INDUCE AN ALIEN TO COME TO OR RESIDE IN THIS STATE IF
41 THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT SUCH COMING TO,
42 ENTERING OR RESIDING IN THIS STATE IS OR WILL BE IN VIOLATION OF LAW.
43 B. A MEANS OF TRANSPORTATION THAT IS USED IN THE COMMISSION OF A
44 VIOLATION OF THIS SECTION IS SUBJECT TO MANDATORY VEHICLE IMMOBILIZATION OR
45 IMPOUNDMENT PURSUANT TO SECTION 28-3511.

I’m not really clear on what “a person who is in violation of a criminal offense” means as far as the legislature is concerned.  But the law appears to make it a crime for such a person to have an illegal alien in his car or home, (to “transport” or to “harbor”), or to “encourage” someone to come to Arizona illegally.  If you do take an immigrant somewhere in your car, this law says the state can take your car from you.

The point, I think, is to make people afraid to be around illegal immigrants, or to have them in their cars or homes.  Many of them (the immigrants)  have friends and family members and will continue to be around them, however, despite the law. A woman who is born here, for example, is not likely to start shunning her parents, because they weren’t.  The friend of a man who needs to get to the hospital is likely to take him, regardless of the law.

The bonds of friendship, and family ties, in other words, are likely to be stronger than the fear of this law – which means it’s not likely to be enforced, because arresting so many people would be impractical.

The law has some other provisions.  It makes it a crime to stop in traffic to pick up day laborers.  (Stopping traffic was probably already a crime, but if not, this law says it is if you’re doing it to pick up a day laborer.

It also makes it a crime for illegals to look for work, while providing a new defense to the employers who hire them.

In summary, the law:
1.)  Is poorly written, because important parts of it are vague.
2.)  Contains a number of meaningless provisions, which either restate the law as it already existed, or give police powers they already had.
3.)  Contains unconstitutional provisions, such as the one that appears to try to take away the right to a jury trial, and another that appears to direct jailers to keep people in jail without a charge.
4.)  Contains provisions that are either impossible or impractical.  For example, one calls for immediate transfers of prisoners as soon as they’ve finished their sentences, when in fact, they can’t be transferred until the Feds are ready to take them.  Another demands that inmates pay the costs of their incarceration, when those same inmates are almost certain to be both indigent, and unable to work.  A third calls on police officers to make determinations about the immigration statuses of people they talk to,under circumstances that make that either difficult or impossible.

What remains – what isn’t unconstitutional, meaningless, or impossible – is mostly just bad social policy.  Going after immigrants’ friends and families, for example, is more likely to simply degrade respect for the law, rather than result in more deportations.  Keeping immigrants – who have committed no other crime than being here – in county jails, rather than shipping them home, is a poor use of state resources.  Particularly in Arizona, a state that can’t pay its teachers, and is closing down its kindergartens.

Bad policy aside, mostly what sb 1070 represents is pure demagoguery – a cynical appeal for support from right-wing voters, masquerading as a plan to “do something” about illegal immigration.

The Federal Court opinion on sb 1070, The United States v. Arizona, can be found here.  In a preliminary ruling, the court struck down most of the most obnoxious provisions.

Note: I don’t mean, in this post, to take any particular position on immigration.  I am against shoddy law-making, however, of which this abortion of a bill is a prime example.

Is It Rape?

Posted By on July 21, 2010

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.

I’d Be Angry Too

Posted By on March 30, 2010

Hutaree Wedding

Hutaree Wedding

I wonder if this is what she imagined her wedding would be like?

Hutaree wedding – link.