Austin Justice
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| Kiele Linroth Pace is an Austin criminal defense attorney and former small-town prosecutor. Here's her complete profile. |
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Travis County stands to lose millions for not reporting criminal history data
Travis County’s poor performance in criminal history data reporting requirements was in the news a couple of months ago. Now, it stands to lose about 3 million dollars annually in grant money from the state if it doesn't come into compliance.
Prosecutors are concerned about the issue because they fear that missing criminal history data could cause them to be too lenient on repeat offenders. But arrests usually ARE reported and prosecutors invariably assume that an arrest means that a person is guilty. As a result, missing criminal history data—which includes favorable case dispositions such as dismissals and acquittals, as well as convictions—is more likely to cause prosecutors to treat a person too harshly rather than too leniently.
Even when you can prove that a case was ultimately thrown out, it is often difficult if not impossible to get a prosecutor to back down from whatever position she takes based on her initial impression of a defendant’s criminal history. That fact combined with prosecutors’ tendency to presume guilt means that defendants are generally better served by case dispositions being reported right along with arrests.
It is worth noting, however, that even when a dismissal is reported on a person’s criminal history, it does not get him back to a clean slate. In other words, a criminal history that shows an arrest that resulted in a dismissal is not equivalent to a clean criminal history to a prosecutor, who is likely to assume that the dismissal resulted from a technical defect, an uncooperative victim, or the machinations of a good defense attorney. Thus, the dismissed case may still lead to a harsher punishment recommendation or even just a less flexible position during plea negotiations, which can also lead to a less favorable result. That is one of the reasons that it’s so important to pursue an expunction for eligible charges.
Criminal Penguins
Some penguins turn to a life of crime to build the perfect nest.
10/30/11 Update. The above link appears to be broken but this one should work: http://www.youtube.com/watch?v=PjQYOOgIom0.
Travis County lags behind in criminal history updates
A Statesman article from last month reported that Travis County doesn't do a good job of providing updated information about criminal cases to DPS for inclusion in the State's criminal history database. This can work both ways for people who have been charged with a crime.
On the one hand, a person who is looking for employment and was recently arrested may not have that new arrest showing up on his criminal history as quickly as it should, which can work to his advantage if he finds a job before it does. On the other hand, when a prospective employee's case has been dismissed or otherwise favorably disposed of, that update also won't reach his criminal history as quickly as it should, so a background check may show the case as pending long after it's been dismissed. The good news is that the attorney who handled the case should be able to provide documents showing the favorable disposition. Still, it's far less awkward for the prospective employee if the criminal history accurately reflects that the case was dismissed.
On a related note, a lot of people assume that when a case is dismissed, it's automatically removed from a person's criminal history but that's not true! Once updated properly, the criminal history will merely show that the case was dismissed. To have it removed from his criminal record, the person must generally wait until the statute of limitations expires (that's two years for a misdemeanor and three or more years for a felony, depending on the charge) then hire an attorney to file a petition for expunction. See this FAQ for more information about expunctions.
Catching up...
This is to let you know that I'm playing catch-up and browsing through my virtual newspaper clippings from the last few months, so you may see some older news items among my blog entries, like my last post. I'm discarding the stale stuff but some of it remains interesting or pertinent to my practice despite its age, e.g., entries for the Police Notebook.
Police Notebook: Albert Aguinaga (APD)
Officer: Albert Aguinaga.
Agency: Austin Police Department.
Alleged Misconduct: Indecent exposure (Class B Misdemeanor).
Disciplinary Action: Administrative leave without pay.
Sources: This Statesman article; this official press release.
Other Information: Officer Aguinaga was indicted for indecent exposure by a Travis County Grand Jury, which declined to indict him for public lewdness and sexual assault based on a July 15, 2010 off-duty incident in which he is alleged to have exposed himself during a lap dance at a South Austin club. The punishment range for a Class B Misdemeanor is a maximum of 180 days in the Travis County Jail and/or a $2,000 fine.
Police Notebook: Officer Danny Johnson (APD).
Officer: Danny Johnson.
Agency: Austin Police Department.
Alleged Misconduct: Giving misleading statements to his superiors and being rude to a resident.
Disciplinary Action: 90-day suspension without pay.
Source: This Statesman article.
Other Information: According to a memo regarding the incident, Officer Johnson was dispatched in response to a woman's report that she had found a discarded hypodermic needle. Officer Johnson stated in a written report to his supervisors that the syringe was old and cracked and did not contain a needle. But the woman filed a complaint about Officer Johnson's behavior toward her, which triggered a review of his patrol car video. The video revealed that the syringe clearly did contain a needle, that Officer Johnson did not comply with police procedures for disposing of it, and that he was rude and condescending to the woman.
Police Notebook: David Mangan #6804 (APD).
Officer: David Mangan #6804.
Agency: Austin Police Department.
Alleged Misconduct: Misrepresenting facts in arrest warrants and offense reports.
Disciplinary Action: Termination.
Source: Brady notice provided to Attorney Paul Walcutt by the Travis County Attorney's office, which he reported to the Austin Criminal Defense Lawyers Association.
Other Information: Officer Mangan was also previously suspended for one day for crashing his cruiser (report available here).
Police Notebook: Blayne Williams (APD)
Officer: Blayne Williams.
Agency: Austin Police Department.
Alleged Misconduct: Off-duty assault of an elderly HEB employee.
Disciplinary Action: 90-day suspension.
Other Information: According to the Statesman, this is the harshest punishment an officer can receive, short of being fired. The facts of the case would have made it a Class C Assault (mere offensive contact) rather than Class A Assault (ordinarily requires bodily injury) except that the victim was elderly, which is an enhancement factor.
Agency: Austin Police Department.
Alleged Misconduct: Off-duty assault of an elderly HEB employee.
Disciplinary Action: 90-day suspension.
Other Information: According to the Statesman, this is the harshest punishment an officer can receive, short of being fired. The facts of the case would have made it a Class C Assault (mere offensive contact) rather than Class A Assault (ordinarily requires bodily injury) except that the victim was elderly, which is an enhancement factor.
Source: Statesman article.
Long time no see.
You may have noticed that this blog has suffered from inattention during a long hiatus on the part of yours truly. My absence was caused first by a massive appellate brief, followed immediately by the happy news but typical and unfortunate side effects of expecting my second child. If things go according to plan (knock on wood), I'll be back on track within the next few weeks.
Meanwhile, I created a page for The Pace Law Firm, P.C., on Facebook and have started using it for small updates like no-refusal-weekend announcements, links to news articles of interest, and brief posts about political candidates in the Austin Criminal Justice System (go Charlie Baird!). I expect to continue posting brief updates there but use this forum for more in-depth writing, such as my first (and most popular) post regarding the Lying Cop.
Regards,
Kiele
DPS surcharge amnesty program.
Earlier this month, DPS began an amnesty program that allows certain folks who are behind on their surcharge payments to lower the payments and in some cases even waive a huge portion of the amount owed! So if you're behind on surcharge payments, go to this website to enter your information and see if you qualify for the program.
The amnesty period expires in April. Here's a link for more information about eligibility and other program requirements .
= = =
For those who are unfamiliar with surcharges, Texas law adds a huge administrative fine upon conviction for certain offenses, including DWI, Driving While License Suspended (DWLS), and No-Insurance tickets. The fine is assessed for each of the three years following the conviction and is above and beyond whatever fines, fees, jail time, etc., may be assessed in court for the actual offense.
For example, with a typical first-offense DWI conviction in Travis County, the defendant may spend one or two days in jail at the time of the arrest, then be put on probation for 18 months. As part of his sentence, he will be required to pay a fine, court costs, various other fees associated with being on probation, do community service, attend court-ordered counseling, meet with a probation officer one a month, and submit to random drug and alcohol testing. This is all after paying a lawyer a hefty fee to represent him, of course. The surcharge program means that, above and beyond all of that, DPS also assesses a fine of $1,000 (more under certain conditions) for each of the three years following the conviction, for a total of $3,000.
Needless to say, many people fall behind on their surcharge payments, which means their licenses get suspended. If they're caught driving after that, they may very well end up with a new conviction for DWLS, which triggers another round of surcharges. It can be a vicious cycle where people end up owing thousands of dollars to the State of Texas that they simply cannot afford to pay.
The amnesty period expires in April. Here's a link for more information about eligibility and other program requirements .
= = =
For those who are unfamiliar with surcharges, Texas law adds a huge administrative fine upon conviction for certain offenses, including DWI, Driving While License Suspended (DWLS), and No-Insurance tickets. The fine is assessed for each of the three years following the conviction and is above and beyond whatever fines, fees, jail time, etc., may be assessed in court for the actual offense.
For example, with a typical first-offense DWI conviction in Travis County, the defendant may spend one or two days in jail at the time of the arrest, then be put on probation for 18 months. As part of his sentence, he will be required to pay a fine, court costs, various other fees associated with being on probation, do community service, attend court-ordered counseling, meet with a probation officer one a month, and submit to random drug and alcohol testing. This is all after paying a lawyer a hefty fee to represent him, of course. The surcharge program means that, above and beyond all of that, DPS also assesses a fine of $1,000 (more under certain conditions) for each of the three years following the conviction, for a total of $3,000.
Needless to say, many people fall behind on their surcharge payments, which means their licenses get suspended. If they're caught driving after that, they may very well end up with a new conviction for DWLS, which triggers another round of surcharges. It can be a vicious cycle where people end up owing thousands of dollars to the State of Texas that they simply cannot afford to pay.