Mark Bennett over at Defending People posted an excellent explanation of why you don’t want to invite the cops into a domestic dispute. Assuming they don’t shoot someone (as they did in the tragic case that Mark leads with), they are still very likely to arrest someone, whether or not you want them to. They may even arrest you. And it can be difficult to undo the legal damage that is done by such an arrest.
The Austin Police Department began using the new cite-and-release law this past Sunday, which allows law enforcement to issue tickets rather than automatically arrest people for certain jailable misdemeanor offenses, including theft, theft of service, criminal mischief, graffiti, driving with an invalid license and possession of marijuana. The Travis County Sheriff has been using the law for over a year with good results. To read more, see the Statesman, Austin Chronicle, and KVUE News coverage.
3/18/09 Update. APD has declared it’s use of the new cite-and-release law a success, according to KVUE News.
I found a nice statement on the need for the exclusionary rule over at Simple Justice that goes with one of my earlier posts:
“The exclusionary rule must exist for one very real, very hard reason: Without it, we have absolutely no means of stopping the cops from breaking down our door at will. Until someone devises a better way to prevent tyranny, we need it. We need it desperately.”
The March 2009 issue of the ABA Journal contains a wonderful article on Texas criminal defense legend Richard “Racehorse” Haynes, who Kinky Friedman described as “one of the most successful and most colorful silver-tongued devils to grace Texas since God made trial lawyers.” Haynes, who turns 82 in April and whose legal career has spanned five decades, “has been the defense attorney in some of the most prominent Texas murder cases ever tried. He’s been memorialized in three books, two movies, a Broadway play, and even in popular music.” To read more, click here.
It’s been a long time since I learned that police officers not only have incentive to lie but that many of them do it all the time. As explained long ago by a federal appeals court judge, who was recently quoted in a Wall Street Journal article, “It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers.” But I was still taken aback by the blatant lying that I encountered last week.
The case involved a rarely used arm of the criminal trespass statute that I was familiar with only because of the time that I spent as a prosecutor in the piney woods of East Texas. Lumber companies typically use purple paint markings on trees in a way that’s described by that statute to mark their territory and let other players in the lumber industry know that a piece of land (and especially the valuable stand of pines on it) is off limits. But such markings have no real relevance in an urban area.
Nonetheless, the probable cause affidavit that Officer Gerardo Cantu, APD#6111, swore to and filed in this case indicated that he arrested my client for trespassing on a “heavily forested” property at 8212 Sam Rayburn Drive, which contained trees “painted with a purple band” as well as posted “No Trespassing” signs that were “in plain view” on all sides of the property.
As you can see from the street view provided by Google Maps, this is not a heavily forested property. [Note: The Google Maps link above has been updated to display images as they appeared at the time this post was published. Use the control box in the upper left corner to set the image date.]
When I drove out there last week, I discovered that it is, in fact, a multi-unit property in a densely populated urban slum. There’s a single tree with no purple paint in sight. The only signs posted anywhere on the property do not say “No Trespassing.” Rather, they prohibit drinking and loud music in public areas, roaming around, soliciting, loitering, and so forth.
In fact, no element of Officer Cantu’s criminal trespass allegation against my client turned out to be true. He just made the whole thing up. The really surprising thing is that he’s willing to commit aggravated perjury when it’s so easy to prove.
As for the case against my client, I printed out the whole stack of photos that I took at the scene, which included a shot with the address shown on the side of the building, and showed them to the prosecutor at our scheduled pretrial conference last week. She decided that it was in the “interest of justice” to dismiss. Imagine that.
The photos below were taken with a pair of BlackBerry cell phones on February 9, 2009 around 5pm.
Austin police officers have started taking out insurance policies that pay out when they’re suspended, demoted, or fired. The insurance doesn’t appear to require that the punishment be unjustified, of course. Read more here.
I wouldn’t begrudge the officers’ efforts to protect themselves except that I’m pretty sure there’s no insurance coverage available to cover missed or lost employment due to wrongful arrest.
Ivey v. State, which was originally litigated in our very own Travis County Court at Law No. 5, and handed down yesterday by the Court of Criminal Appeals, says that a judge can put a defendant on probation even if the defendant doesn’t want it and the jury denies it:
“We hold that a trial court may place an eligible defendant on community supervision even if the defendant has elected to have his punishment assessed by the jury and the jury does not recommend it.” Here’s the opinion.
Personally, I’ve always thought that jail or prison time is kind of like cash when it comes to a defendant’s debt to society. Of course, the judge can’t force Ivey to actually obey the terms and conditions of probation. If he chooses not to, it’ll be interesting to see what the judge has to say at the revocation hearing.
1/29/10 Revision. Changed category from “Cases of Note” to “Case Law.”
Over the course of his first 3 years as presiding judge of the 299th District Court, Judge Charlie Baird has shown himself to be a true believer in following the law and dispensing even-handed justice. How does the DA’s office like that? Not very well, apparently.
The 2010 Democratic primaries may well be the first time in history that the Travis County DA’s Office has run an opponent against an incumbent criminal court judge. To read more, see this Austin American-Statesman article.
3/18/09 UPDATE. Judge Baird’s opponent has backed out of the race. See this Statesman article for more.
If Texas’ top police chiefs, including Austin Police Department’s Art Acevedo, get their way, then anybody arrested on mere suspicion of a criminal offense in Texas will be forced to give a DNA sample, which would be added to the state’s database. The person would not have to actually be charged with or convicted of the offense. To read more, see this Austin American-Statesman article.