By Raman GillFormer Texas House speaker Gib Lewis had this to say about his recent DWI arrest: "There's nothing to say but don't drink and drive."

That's excellent advice and it's exactly what I tell my family and friends, as well as my clients who are charged with DWI. And by "Don't drink and drive," I don't mean, "Be sure you only have one or two drinks, no more, before you drive," or, "Be sure you wait a good while after having a drink before you get behind the wheel." Nope. I mean, don't drink ANY alcoholic beverage and then drive (or boat, which seems particularly relevant given these three-digit temperatures and the need we all seem to feel to be in or around water if outside these days).

I can't tell you how many people our firm has represented who've had a drink or two after work, or two glasses of wine at a book club meeting, or a glass or two of wine at dinner with their spouse, and then were stopped for a minor traffic violation while driving home - and the next thing they knew they were trying to take nine steps, heel-to-toe, down an imaginary line along the side of a dark road. Often, when an officer smells ANY alcohol on your breath, he'll start asking you about whether you've been drinking and then he'll ask you if you mind taking a few field sobriety tests.

The answer to the officer's question, by the way, is YES, you do mind. You mind very much. (Except you say it very politely, as in, "With all due respect officer, I won't take any field sobriety tests and I'd like to speak with my lawyer.") Because unless you've got the balancing skills of Mary Lou Retton (I know this reference ages me, but I remember her landing perfectly off that vault in the 1984 Olympics to win the all-around women's gold medal), you might very well fail these tests, intoxicated or not.

I'm certified to administer the three "standardized" field sobriety tests most often given during DWI stops, as are most lawyers at our firm. Part of our training included attempting these tests - many times. I certainly don't want to impugn the balancing abilities of my colleagues, but let me at least say as to myself - I could not do the "Walk and Turn" or "One Leg Stand" stone cold sober, at least not until I practiced many, many times. It's simply not natural to walk heel-to-toe with your hands by your side, or with one leg six inches off the ground. If you've ever tried yoga, you'll know that making your body do what it doesn't do in everyday life doesn't always go so well the first few times. Especially if you're very nervous and distracted, maybe on the side of the highway, as most people are during DWI stops. Even our resident yoga diva Kristin Etter gave a less-than-stellar performance her first few goes at these field sobriety tests. (Did I say I wasn't going to impugn anyone else's balancing skills? Sorry, Kristin!)

So there you have it. One of the many reasons it's really just better to not drink and drive - at all.

Labels: dwi, field sobriety tests, gib lewis

posted by Dan   permalink   0 Comments

Imagine being told that you must register as a sex offender for life for something that is not a even a crime in Texas, let alone a registerable offense. Well, that is exactly what happened to a client of mine when he moved from out-of-state to Texas to live near his mother. When I consulted with this young man I though surely this is a beaurocratic mix-up with Texas Department of Public Safety that can be resolved with a few phone calls right? Wrong. What ensued was a series of Kafka-esque conversations with DPS employees, culminating in a year of litigation after we had to sue DPS to have our client removed from the sex offender registry.

The situation all started when my client was convicted of a misdemeanor in his home state for having consensual sex with his seventeen year old girlfriend when he was twenty-one (the longer back story was that the girlfriend's father was upset so he called the cops to report this "crime"). Unlike Texas, where the age of consent is seventeen, in my client's homestate, the age of consent was eighteen. When he moved to Texas, however, authorities told him that because his "offense" was "substantially similar" (more on that in a second) to the Texas offense of Sexual Assault of a Child, he would have to register as a sex offender for life. Despite the fact that courts have held that sex offender registration is a "collateral consequence," and "non-punitive", having to register as a sex offender is as close as you can get to a lifetime sentence if you ask me.

The legal basis DPS was relying on to make my client register was a provision under Article 62.003 of the Code of Criminal Procedure which allows DPS to make a determination whether an out-of-state offense is "substantially similar" to an offense here in Texas. If they say yes, then you will be forced, with threat of prosecution for the third-degree felony of failure to register as a sex offender, for the rest of your life. Thankfully, 62.003 also contains a provision that allows a person to appeal this determination by DPS. As I mentioned, this is exactly what we had to do in this case.

The result? The Court thankfully sided with us and found that my client's previous offense was not "substantially similar" to any offense in Texas (imagine that, something that is not a crime in Texas is not "substantially similar" to a crime in Texas). Moreover, the Court ordered DPS to immediately remove my client from the sex offender registry and to contact all agencies that they have previously disseminated this information to.

Interestingly, in some logistical discussions with DPS post-hearing, I was told that this was the first case ever brought successfully in Texas under 62.003. What this tells me anecdotally is that my client can't be the only one in this situation. If I had to guess, I would suspect that there must be hundreds, if not thousands, of people in Texas who are currently on the sex offender registry that should not be.

Labels: dps, public perception, sex offender registration

posted by Kristin Etter   permalink   0 Comments

If there is one area of law that has changed more than any other through the years, it is juvenile law. And I don’t mean change in terms of legal definitions or statutes, I’m talking about change in terms of societal perception and treatment.

When I was a kid if someone got into trouble at school they were dealt with by adults entrusted with the power to investigate and respond accordingly - Adults with the wisdom to evaluate a situation and discipline a child if necessary. A coach might order someone in gym class to do pushups, have a student run laps around a field, or even whack a behind with a paddle. Teachers might give additional homework, write a letter to a parent, or send a child to the principal’s office. Principals might reprimand a student, expel them, or send them home to face their parents. Parents might ground their child or levy additional chores. Whatever the response, adults in charge could exercise discretion when deciding what discipline, if any, should be administered. Police interrogations, strip searches, and criminal charges were a last resort. Now, investigative measures and disciplinary actions are, more often than not, pre-determined. Now there is zero tolerance.

On October 8, 2003, thirteen year-old Savana Redding was strip-searched while at school. Savana was an honor student who had never been in trouble before. Even so, because of an unsubstantiated allegation that she had brought drugs to school, authorities felt compelled to search her. First, she was forced to take her outer clothing off. A male vice-principal and female school nurse inspected her jacket, t-shirt, pants, shoes, and socks. When nothing was found she was told to pull her bra to the side, exposing her breasts, and shake it out. Still nothing. Finally, she was made to expose her pelvic area by pulling the crotch of her underwear out to see if any drugs had been hidden there. Nothing was found. During this process Savana continued to express her innocence. She never consented to the search and her parents were not contacted.

What kind of dangerous drug would justify such an evasive search? What were they looking for?

Advil.

Parents need to realize that student behavior, which in the past, would have been handled by the school - or better yet, the parents - is now, more often than not, pursued according to pre-determined directives and turned over to law enforcement. Criminal charges are filed and must be dealt with. One kid pushes another kid and assault charges are filed. A child sprays deodorant in a locker room, sets off a smoke alarm, and is charged with a felony. A kid who writes “bomb” on an empty envelope as a joke then makes the mistake of leaving it on top of a trashcan, is charged with terroristic threat. The list goes on and on. Don’t get me wrong - it’s easy to see how we got here. It’s a frightening new world with kids taking guns to school to exact revenge for perceived persecutions, joining gangs in order to feel tough and protected, self-medicating via prescriptions found at home or drugs purchased on the street. Terrible crimes occur in school these days that shock all of us. We have to do everything possible to ensure the safety of our children.

But aren’t we just taking the easy way out with zero tolerance?

A child’s life is so difficult these days, and I fear we are just making it tougher, albeit in the name of safety and a child’s best interests. A child is given no leeway to exercise poor judgment and make the stupid mistakes of childhood without grave consequences. An adult, meanwhile, can avoid making a mistake of judgment altogether by merely turning to zero tolerance. So much easier than weighing the facts and using common sense! We're saying, "It doesn’t matter that you are a child and do not know better, I will not burden myself with personal judgment regarding the situation and run the risk of making a decision that others might not agree with. Zero tolerance will make my decision for me."

Last week the Supreme Court found the search of Savana Redding to be unconstitutional. “Outrageous” was the term used to describe the school official’s actions. But I fear zero tolerance is here to stay in one form or another. A school official faced with the decision of how far to go when dealing with a child’s apparent misbehavior will almost certainly err on the side of caution and avoid the danger of subjective discretion. Whether violating a child’s constitutional rights in an effort to procure evidence or deciding to press criminal charges, caution will be the driving factor, not tolerance. When in doubt, search the child, call the authorities, and file the charges.

I think about this every time I’m confronted by an upset parent who doesn’t understand why their child has suddenly become involved in the juvenile justice system. Why is my child being treated like an adult criminal? Why have criminal charges been filed just because my child got into a schoolyard fight or had ibuprofen in his pocket? It’s hard to understand. Shouldn’t they, as parents, be given the opportunity to discipline their child without such drastic measures being taken? That’s when I remind them that the world has changed. That there was a time when a kid could act like a kid and be treated like a kid, but unfortunately… those days are long gone.

Labels: juveniles, public perception, taking the easy way, zero tolerance

posted by Dal   permalink   0 Comments

I just read Raman's post on The National Network for Safe Communities and couldn't agree with her more. Reading it, I reflected on this week's DWI Court graduation ceremony. I am one of two defense attorneys in Travis County's DWI Court - an innovative program which serves people arrested for multiple DWI's by "providing an intensive, judicially supervised program of team-based counseling, treatment, and supervision."

My participation in this court is quite different from my work in "regular" court - rather than working from the traditional adversarial approach, the DWI Court works as a team. Before our Court sessions, the team - consisting of the Judge, Probation, County Attorney, Alcohol Counselors, and Defense Attorney - meets to discuss each participant and their recovery. We problem-solve together and often disagree amongst ourselves, but in the end come up with agreed-upon solutions to help each participant in their recovery.

Even through the team approach, we still function in a "defense attorney" role - as the National Drug Court Institute warns, "It is essential that defense attorneys remain vigilant in protecting civil liberties - even in the relatively nonadversarial context of drug court." That is why I agree with Raman that there should be defense attorneys involved in this new program that could be a great solution to reducing crime and incarceration.

Anyway, as I said, her post made me reflect on this week's graduation ceremony. I must admit that this was the first time that I truly "got" just what makes this court different. Listening to one of the graduates - an older man who had spent many decades addicted to alcohol - speak about how the Court truly changed him was humbling. "I feel like I've just graduated kindergarten and am going into the first grade of life," he said. Not only does the court provide an alternative to incarceration, it can be a springboard into a whole new life.

Labels: dwi, DWI Court, innovative tactics, the role of defense attorneys

posted by Kristi Couvillon   permalink   0 Comments

I am still trying to recover after learning that Governor Perry vetoed some of the only good criminal justice bills that made it through the legislative gauntlet this session (after hundreds of bills died in the House due to the controversy surrounding voter ID). Few, if any, lawmakers voted against the bills that Perry killed and it is beyond frustrating that one person has this much power: I echo the sentiments of Senator Wentworth's vent:

"There's no check on the governor's power to veto bills that have been through an entire process," said Sen. Jeff Wentworth, a Republican from San Antonio who represents part of southern Travis County. "When senators and representatives from all 254 counties overwhelmingly — in some instances, nearly unanimously — pass legislation that's been through a really tortuous path to get to his desk, for the governor to veto it seems a bit unusual," Wentworth said.

So much for the democratic process.

The bills I am most upset about are the expunction bill and the sex offender de-registration bill.

The expunction bill would have made it easier to for those who have had their cases dismissed, or were arrested but were not charged with a crime, to expunge their records. This would have been an amazing opportunity for people who have had their cases dismissed (or not filed!) to move on with their lives without having a criminal record following them around.

Texas Criminal Defense Lawyers Association, along with many other groups, proposed the change because current law imposes lengthy time limitations (and in some case, no time limitations) on being able to file for an expunction after a case has been dismissed. For example, I have two clients that were falsely accused of sexual assault that are unable to have their records expunged under current law because there is no statute of limitations for that offense. Sorry, looks like those false sexual assault charges are going to have to follow two innocent men around at least two more years until next session! And sorry to the thousands of innocent Texans who are going to continue to be harmed with a criminal record that will make it even harder for them in these tough economic times to find jobs, housing, etc.

And Governor Perry's official veto statement as to why he vetoed a bill that had bi-partisan support and passed unanimously out of the House and Senate is nonsensical: "Expunction statutes should not be used as a means of discovery or as a means to force a prosecutor to rush to file formal charges prematurely." What??? Expunction statutes have never and would never be used as a means of discovery - what we want when we are seeking to expunge records is a destruction of those records, not a request to get offense reports. In addition, prosecutors must only have probable cause to file formal charges against someone - and every defense attorney knows how difficult a time a prosecutor has persuading a grand jury on that!

The sex offender de-registration bill was a very narrowly tailored bill that would have offered some relief to young "offenders" who could petition the court for an exemption from life-time sex offender registration for consensual sexual activities if they were within four years of the "victim." Under current law, a 17 1/2-year old who has consensual sex with his 14-year old girlfriend (or a 19 year old with a 15 year old or a 20 year old with a 16 year old) is guilty of sexual assault. That person, if convicted, has to register as a sex offender for life just the same as someone who commits rape or makes child pornography.

What we are talking about here under this bill would have been to allow those teenagers in "Romeo and Juilet" situations to petition the court (and this would have been permissive - not mandatory) to excuse them from a lifetime of sex offender registration for consensual sex as long as they were within four years of the "victim". (And as long as the "victim" was 14 or older.)

And Perry's reason for the veto: "I believe the bill fails to adequately protect young victims." First, the "young victims" Perry refers to are the teenagers who had consensual sex with partners four years older than they were - how does not making those "offenders" register for life in the same way that dangerous predators do "fail to adequately protect" them? Got me. And more importantly, what about the "young victims" out there that will be harmed because our limited public safety resources will be diverted and wasted on monitoring thousands of people on the sex offender registry that pose absolutely no public safety threat? (Not to mention those "young victims" - the "offenders" - who now have no relief from a life-time of living publicly as a sex offender.)

You can probably guess that I am not normally a huge Republican backer, but here's to Kay Bailey Hutchison (or really, anyone but Perry... ANYONE - Kinky Friedman? Leslie Cochrane? Kermit the Frog?) for 2010.

(Flickr images via bludgeoner86, d. jones photo, stuck in customs, faster panda kill kill, lovebrkthru)

Labels: expunctions, governor perry, kay bailey hutchison, kinky friedman, leslie cochrane, politics, sex offender registration, texas gubernatorial election 2010, texas legislature, texas republican primary

posted by Kristin Etter   permalink   0 Comments

By Raman Gill

I was struck by a recent article in the Wall Street Journal on The National Network for Safe Communities, which is, essentially, an intervention program for future violent criminals. Much like substance-abuse interventions, the target (yes, target) is confronted and told that he must stop his offensive behavior. I call them targets because that's exactly what they are--targets of criminal investigations:

Under the project, law-enforcement officials and prosecutors in the cities identify individuals operating in violent-crime areas who haven't yet committed serious violent crimes, and build cases against them, including undercover operations and surveillance. The culmination is a "call in" when the case is presented to the would-be suspect in front of law enforcement, community leaders, ex-offenders and friends and family.

"The prosecutor talks to them and lets them know: 'we could arrest you now but we won't because the drug dealing stops today, the violence stops today,'" said Jeremy Travis, president of John Jay. "If you continue, you now know the consequences and you've seen the case against you but we don't want to send you to prison."

Here's the thing: Where's the defense attorney in all of this? I know, I know--there's no arrest, no case to defend against. No need for a defense attorney, right? But is there some sort of agreement about how statements and admissions that the target makes during these interventions are going to be used if - gasp! - the target reoffends? Can statements and admissions made during these "call-ins" be used against the target in future prosecutions? Because I'm guessing that, just like drug addicts who often have to go through rehabilitation many times before it sticks, a good number of people who've been regularly "operating" in high-crime areas don't stop doing so after one intervention.

I don't mean to be hyper-critical. Really, I don't. Instead of seeing these folks as targets of criminal investigations, they could easily be seen as recipients of a second chance. Not to mention that similar programs implemented in Boston, MA and High Point, NC in the 1990s significantly reduced homicide rates, which is fantastic. And we should all applaud prosecutors and law enforcement officials who are genuinely more interested in reducing crime than winning convictions and putting people in prison.

But still, it bothers me. I often find that defense attorneys are not included in projects and initiatives that focus on public safety. And that's really too bad, not only because initiatives like this might be skating a very fine line in terms of observing fundamental rights, but also because defense attorneys are sometimes in the best position to help offenders comply with the law.

What? Aren't defense attorneys the people in the system who help offenders "get away with it?" That's certainly one way of looking at it. But here's another: The defense attorney is the one person in the system whose undivided loyalty is to the accused. This means, in an ideal situation, that there is a solid relationship of trust between the accused (or, here, target) and the defense attorney. If a target, who might well be facing a host of pressures to continue his offensive behavior, feels he can talk about his predicament or predilections to his defense attorney, then the attorney can connect him to resources that can keep him on the right track. A good defense attorney, especially those that practice holistic advocacy like some of the best public defender offices in the nation, is going to have, or at least know about, tools and resources to help battle peer pressure, addictions, familial issues, and other issues that might sway even the best-intentioned people back to a life of crime.

In the end, defense attorneys, like everyone else, care about public safety. We can be assets, not impediments, to that end.

Labels: crime prevention, holistic advocacy, innovative tactics, risks and rewards, the role of defense attorneys

posted by Dan   permalink   0 Comments

Lately it seems that the only things I'm thinking about are the intersections between law and medicine. Up until this morning, I considered this a function of the national dialog about health care reform. Since I'm not in the health care industry, and since I don't like being left out of conversations, this was the simplest explanation.

The real answer is that the universe wants me to keep thinking about this topic.

On the way to work this morning I had another NPR driveway moment. (This would be understandable if I actually listened to NPR on the way to work, but that's what makes the story even better - I was so lost in a separate train of thought that I drove to work in silence, and for some reason turned my radio on only after parking.) Sitting in the parking garage, I heard an outstanding story about a group of retired health care practitioners called Bedside Advocates. This group of physicians and nurses do not practice medicine; rather, they provide information, facilitate better communication with health care providers, and develop a family-like relationship with clients.

In essence, they become zealous advocates.

For anybody who complains that lawyers simply do what their clients want, it is interesting to see the health care profession transplant a central tenet of our profession to improve their quality of care. When a client walks into my office, my job is to advocate for their interests. In order to know what their goals are, I have to listen. And ask questions. And educate. And ask more questions. And listen some more. A relationship forms through a shared common purpose, as well as through a discussion of our strategy to get there.

We talk a lot at Sumpter & Gonzalez about these things, and focusing on our "legal bedside manner". It's nice to see health care professionals acknowledge the need for "medical zealous advocacy", too.

Labels: doctors and lawyers, lagniappe, legal bedside manner, the role of defense attorneys, zealous advocacy

posted by David M. Gonzalez   permalink   0 Comments