Austin Justice

AquaPalooza and Boating While Intoxicated

Kiele Linroth Pace — Mon, 12 Jul 2010 02:21:00 GMT

7/13/10 Update. More AquaPalooza = more arrests...

Reading the arrest results for this weekend's so-called AquaPalooza , it occurred to me to mention a couple of things that some folks don't know...

First there IS such a thing as boating while intoxicated. I've had people laugh like I'm telling a joke on a couple of occasions that I've mentioned it in a casual setting. But no, I'm serious folks. Furthermore, drinking and boating is actually riskier than DWI from a criminal liability perspective because the police do NOT need a reason to stop a boat. That's right, whenyou're in a boat, the police can demand you stop, board the boat, and conduct an inspection justbecause they feel like it.

No-Refusal Fourth of July Weekend

Kiele Linroth Pace — Fri, 02 Jul 2010 20:13:00 GMT

APD has announced that this weekend will be no-refusal beginning at 9 p.m. tomorrow, Saturday July 3 and continuing to Sunday July 4 at 5 a.m. During this time, if you are pulled over and investigated for Driving While Intoxicated, if you refuse to take the breath test, the police will get a warrant to have your blood tested.

Take a cab, folks. It's a hell of a lot cheaper than fighting a DWI conviction, even if you ultimately win.

The Defenders

Kiele Linroth Pace — Sun, 27 Jun 2010 00:21:00 GMT

CBS has a new legal drama about criminal defense attorneys coming this fall that looks good. It probably won't last but I'm looking forward to catching a few episodes while it does.

Another Travis County ADA Withheld Evidence...Again

Kiele Linroth Pace — Wed, 02 Jun 2010 13:17:00 GMT

Travis County Assistant District Attorney Stephanie McFarland withheld information showing that a key state witness lied during a 2006 aggravated assault trial. As a result, the conviction that she obtained in the case has been vacated.

This is the second time in 15 months that McFarland has been found to have engaged in this type of prosecutorial misconduct. I'm sure I'm not the only one who will be watching closely to see what District Attorney Rosemary Lemberg does with Ms. McFarland.

Police Notebook: Joe Chavez (TABC)

Kiele Linroth Pace — Tue, 01 Jun 2010 18:04:00 GMT

Officer: Officer Joe Chavez.
Agency: Texas Alcoholic Beverage Commission.
AllegedMisconduct: Sexual assault of a 16 year old, online solicitation of a minor, abuse of official capacity, official oppression.
Disciplinary Action: Unknown.
Other Information: Indicted by a Bastrop County grand jury.
Source: AG press release dated 6/1/10.

Police Notebook: William Deal (APD)

Kiele Linroth Pace — Thu, 11 Mar 2010 01:27:00 GMT

Officer: William Deal .
Agency: Austin Police Department.
Alleged Misconduct: Theft of an electric razor from HEB.
Disciplinary Action: Unknown (APD internal investigation ongoing).
Other Information: Deal was arrested in Williamson County on 2/18/10 and released the next day on $1,000 bond.
Source: This Statesman article.

Warrant Roundup Begins Saturday

Kiele Linroth Pace — Thu, 04 Mar 2010 21:33:00 GMT

FROM AUSTIN MUNICIPAL COURT:

Law enforcement agencies from more than 250 agencies across Texas will begin making arrests Saturday, March 6, as part of the Great Texas Warrant Roundup. This major, multi-jurisdictional push kicked off Feb. 19 with the mailing of thousands of notices warning people with outstanding warrants of the impending arrest effort. The last day to clear warrants is Friday, March 5, before the concentrated effort to make arrests begins.

For more information, including online payment instructions, see this Statesman article.

Also worthy of note is that Austin Municipal Court's policy is to not arrest people with active warrants who go there to take care of business.

New government loophole for open records requests.

Kiele Linroth Pace — Wed, 03 Mar 2010 14:11:00 GMT

Criminal defense attorneys and other government watchdog types who use open records requests to obtain information suffered a recent setback. In City of Dallas v. Abbott, the Texas Supreme Court addressed the government's deadline for complying with such requests and gave the government a new loophole.

In the past, the government had a strict 10-day deadline for complying with open records requests. If the request was vague or overly broad, the government could seek clarification but the clock stopped running only until the clarification was provided. Now, however, the government's deadline will be extend by 10 days.

That may not seem like such a big deal but the concern is that government officials may use the loophole to improperlydelay the release of information in time-sensitive situations in order to avoid accountability. Such concerns seem well-founded in light of the government's history in this arena, which is what led to the legislature to impose the strict deadline in the first place.

Lawyer Bill Christian, who has represented the Austin American-Statesman on open records matters, has the following suggestions for avoiding improper delays with open records requests:

• Be as specific as possible so there are no grounds for seeking clarification. Don't ask for "all documents" or "all records" unless it's for a narrow, well-defined category.

• Make specific, narrow and numbered requests so that it's more difficult for the agency to claim that the requests are vague.

• If you know what you are asking for, identify that document specifically as one of the numbered list.

• When a government agency seeks clarification, reply as quickly as possible with a narrowing or clarifying explanation.

Police Notebook: Sgt. Nedith Torres (APD)

Kiele Linroth Pace — Wed, 03 Mar 2010 13:52:00 GMT

Officer: Sgt. Nedith Torres.
Agency: Austin Police Department.
Alleged Misconduct: Sgt. Torres assaulted his wife then lied about it during the subsequent investigation.
Disciplinary Action: Sgt. Torres was fired in August 2008. He appealed and the arbitrator reversed the firing, despitefinding that the allegations were true. APD filed a lawsuit last Friday to challenge the decision.
Other Information: As a result of the incident, Sgt. Torres was originally arrested for Assault Family Violence, a Class A misdemeanor punishable by up to one year in jail and a fine not to exceed $4,000. He ultimately pled guilty to a reduced charge of Class C Assault, presumably as part of a plea bargain agreement.
Source: This Statesman article.

No Refusal Mardi Gras

Kiele Linroth Pace — Fri, 12 Feb 2010 02:19:00 GMT

APD has announced "No Refusal" Mardi Gras here in Austin this Saturday (2/13/10) and Tuesday (2/16/10) from 9 p.m. on each day to 5 a.m. the following morning. That means that the police will seek blood warrants for people who are stopped and investigated for DWI and refuse to submit to a breath test. For more information see this Statesman article.

2/15/10 Update. 21 people were arrested in the first leg of No-Refusal Mardi Gras. Of those, 7 consented to breath tests and 14 were subjected to blood warrant testing. See this Statesman article for more. Remember, the second leg is coming up this Tuesday evening.

2/19/10 Update. 20 people were arrested during the Fat Tuesday portion of No-Refusal Mardi Gras. That figure includes 4 voluntary breath tests and 16 blood warrants. See this Statesman article for more.

Fire Investigation

Kiele Linroth Pace — Sat, 06 Feb 2010 01:18:00 GMT

D.A. Confidential has a great interview with an Austin Fire Department Fire and Arson Investigator, which includes a pretty detailed explanation of how a typical arson investigation is conducted and a discussion of telltale signs that an accelerant may have been used.

No Refusal Super Bowl

Kiele Linroth Pace — Sat, 06 Feb 2010 00:53:00 GMT

APD has announced a "No Refusal" Super Bowl, from this Sunday (2/7) at 9 p.m. until Monday (2/8) at 5 a.m. For more (including a little regurgitation of police propaganda), see this Statesman article.

2/9/10 Update. Eighteen people were arrested during No-Refusal Super Bowl Sunday. Ten of those arrested provided breath samples voluntarily, warrants were issued to draw blood from seven people, and one is under investigation. For more, see this Statesman article.

Definition of "commercial instrument" (Shipp v. State).

Kiele Linroth Pace — Fri, 29 Jan 2010 15:00:00 GMT

According to the Texas Court at Appeals blog, the CCA will take up the issue of whether forgery of a "commercial instrument" includes a store receipt.

The Sixth Court of Appeals (Texarkana) didn't think so, limiting the definition to instruments that affect a legal relationship or convey some sort of future benefit, and excluding a store receipt because it simply memorializes a transaction that has already occurred. Here's the court of appeals opinion: Allen Ray Shipp v. State.

Representing the Wretched

Kiele Linroth Pace — Fri, 29 Jan 2010 02:47:00 GMT

I've written about representing the guilty. Now, via Defending People and from Preaching to the Choir, I've come across a wonderful treatment of representing the wretched:

So I was perusing an internet comment board this afternoon. (I know, I know. Stay away, those internet message boards are filled with crazies. Nothing good comes from reading, etc. I know. Meryl's staging an intervention, but in the meantime, I learn interesting things about the general populace.)

Anyway, I found this comment on an article about a capital murder case:

The Constitution does a lot to protect fools, the undeserving, and pieces of human trash.

Reading that made me grin. I felt all warm and fuzzy inside. And I said with pride, "Hell, yeah, it does!"

I'm willing to wager that's not the reaction the writer was expecting. Based on context, I'm fairly confident the writer wrote those words with a rueful shake of the head and a sense of outrage that the Constitution does protect those folks. I suspect the writer would think it not such a bad thing if we added an asterisk to the Bill of Rights indicating these rights do not apply to fools, the undeserving, and pieces of human trash.

But, me, I think it's awesome. (Yes, I'm a lawyer with an extensive vocabulary and that is the word I choose.) It's easy to respect the rights of the pretty people, the popular ones, the charming folk, the nice guys. No one's going to run roughshod over Mr. Rogers' rights. We probably don't need a Constitution to protect the Prom Queen. It's the assholes we need to write the rules for. It's harder to treat them well, to be fair to them, to refrain from punching them. So 200-some years ago, we wrote a contract with ourselves to make sure we would always respect the rights of the worst among us.

It's easy to treat the good people well. But the true measure of our character is how we treat the bad ones. We choose to treat them fairly and with respect. And I think it's awesome.

Here's that link again from Preaching to the Choir, in case you think this is as "awesome" as I do.

Touch DNA

Kiele Linroth Pace — Wed, 27 Jan 2010 23:15:00 GMT

Via an old Grits for Breakfast post, I came across this Scientific American article about Touch DNA that I want to preserve.

According to the article, this method of testing can detect the slightest bit of genetic material and was used to clear Jon Benet Ramsey's family of any involvement in her death. Those poor, poor people. Can you imagine being put through all of that after your child is brutally murdered?

Police Notebook: Former Sgt. Michael Olsen (APD)

Kiele Linroth Pace — Wed, 27 Jan 2010 01:58:00 GMT

Officer: Former Sgt. Michael Olsen.
Agency: Austin Police Department.
Alleged Misconduct: Excessive use of force and demonstration of poor judgment and tactics, leading to the fatal shooting of a man in 2007.
Disciplinary Action: Fired.
Other Information: Currently under investigation by APD for improper use of force against a 13-year-old in a private security capacity. Olsen is the Austin branch manager for a private security company that coordinates and assists patrols at about 60 apartment complexes (including the East Austin apartment complex that is the site of the 2007 shooting), strip centers and other sites throughout the city.
Source: This Statesman article.

Update re. Briscoe v. Virginia (SCOTUS)

Kiele Linroth Pace — Tue, 26 Jan 2010 15:44:00 GMT

Back in November, I posted the following blurb about a case on this month's argument calendar in the SCOTUS:

Briscoe v. Virginia (07-11191) — Scope of crime lab analysts’ role in a criminal trial; sequel to Melendez-Diaz v. Massachusetts,on Sixth Amendment Confrontation Clause rights. The Melendez-Diaz case,which was decided earlier this year, requires the prosecution, when itpresents a lab report as evidence in a criminal trial, to make theanalyst who prepared it available for cross-examination by defensecounsel. Sadly, the 5-4 decision may already be in jeopardy. More....

Thankfully, the SCOTUS remanded Briscoe (pdf) for further proceedings "not inconsistent with" the Melendez-Diaz opinion (pdf).

1/29/10 Revision. Changed category from "Cases of Note" to "Case Law."

Bennett's 16 Simple Rules for Jury Selection

Kiele Linroth Pace — Tue, 26 Jan 2010 15:29:00 GMT

Mark Bennett's tips for jury selection, published by The Jury Expert, are definitely worth preserving.

Seven Bullshit Police Myths Everyone Believes (Thanks to Movies)

Kiele Linroth Pace — Fri, 22 Jan 2010 05:35:00 GMT

Came across this amusing but mostly true rundown of seven bullshit police myths. The myths it debunks are the following:

Myth #7. Forensic Science is Magic
Myth #6. The Insanity Defense Lets You Get Away With Murder
Myth #5. Not Talking To Cops Equals Obstruction of Justice
Myth #4. Undercover Cops Have To Identify Themselves If Asked
Myth #3. Tracing a Call Takes a Long Time

Myth #2. Criminals Must Be Read Their Miranda Rights or They Will Go Free

Myth #1. Everyone Gets One Free Phone Call

Follow this link for an entertaining and informative explanation for why these are strictly myths (note that it contains a paranoid big-brother-is-listening-through-our-cell-phone theory that I'm not sold but otherwise seems accurate and is definitely worth a read.)

1/26/10 Editing Note: Added a line to (hopefully) clarify that the list alone isn't what's worth reading; you really need to follow the link.

"Unpaid" suspension is a misnomer.

Kiele Linroth Pace — Sun, 17 Jan 2010 17:46:00 GMT

When an police officer's misconduct results in "unpaid suspension," he probably isn't being punished as much as you think. That is because officers are allowed to use vacation time and other forms of leave to cover the gap. As a result, such suspensions rarely result in lost wages. See this Statesman article for more.