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You may recall Hack filed his own “Findings and Conclusions” on the Keller controversy back on August 21, 2009.  Now that Special Master David Berchelmann, Jr. has filed his Findings of Fact, all I have to say is Hack is vindicated.  And to all of those who fell for the blandishments of Texas Defender Service (including a lot of high-profile lawyers with the Texas Criminal Defense Lawyers Association), reading the findings will be particularly painful.

It’s still illegal to walk on the wrong side of the street in any town in Texas and if observed by a police officer, provides probable cause to detain, question and possibly search.  That’s the conclusion of the Amarillo Court of Appeals in an unpublished opinion which reverses a Lubbock County trial judge’s order of suppression.  In addition, the Waco Court of Appeals hands down a reversal based on “unassigned error” (the last vestige of what the old yellow-pad lawyers used to call “fundamental error”) involving the requirements for a properly amended indictment.  It’s worth reading.  Go to Significant Decisions page.

“One thousand-one, one thousand-two, one thousand-three, one thousand-four, one thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousand-nine, one thousand-ten, one-thousand-eleven, one thousand-twelve, one thousand-thirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousand-twenty.  That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr., according to the instrument’s log.  At the time, appellant was handcuffed and being held down in a hospital emergency room.  Arp wanted appellant to spit-out what he had in his mouth.  When appellant did not comply after Arp’s first foray, the tasings resumed.  No one viewed appellant as a threat to others during the episode.  Nor had he attacked anyone.  Arp simply wanted to comply.  When asked if “repeated taser use [was] acceptable” and whether “20 seconds worth of tasering” was “okay,” the policeman answered “yes” to both.”

So begins the Seventh Court of Appeals’ opinion in Anthony Hereford, Jr. v. State of Texas, No. 07-08-0315-CR, handed down yesterday.  Chief Justice Quinn, writing for a unanimous panel, concluded that the manner in which crack cocaine was extracted from Appellant’s mouth, namely the repeated administration of taser shocks, was unreasonable, excessive and constituted a violation of due process.  The trial court’s denial of Appellant’s motion to suppress was reversed and the case remanded for new trial. (more…)

Amarillo has five red light cameras in operation.  Below, courtesy of the Texas Department of Transportation and www.texastribune.org are statistics from those cameras for the period 7/1/08 to 6/30/09.

Coulter at Elmhust: 8116 citations issued generating $426,090 in revenue

Pierce St at SE 11th Ave.: 3164 citations issued generating $166,110 in revenue

Coulter St. at I-40 frontage road: 2852 citations issued generating $149,730 in revenue

Pierce St. at SE 3rd Ave.: 2512 citations issued generating $131,880 in revenue

Ross St. at I-40: 1542 citations issued generating $80,955 in revenue

During this same period, there were a total of 63 crashes at all five intersections.  The Coulter-Elmhurst intersection recorded 9; the Pierce St. at SE 11th Ave. intersection - 9; Coulter St. at I-40 frontage road - 22; Pierce St. at SE 3rd Ave. - 5 and Ross St. at I-40 - 18.  Total citations issued: 18,186 and total revenue raised was $954,765.

I have before me a motion to suppress filed in an Amarillo drug case in which counsel makes the following argument: “The officer’s search of his patrol car is in violation of the law, as [the officer] did not have reasonable suspicion to search his vehicle for contraband.”  I suppose the regular search that cops normally make after removing arrestees from the back seat of the patrol car turned up the dope.  The motion cites to no case authority in support of this astounding proposition nor does it attempt to explain how the inventory of the police vehicle constitutes a search for fourth amendment purposes.  Question: what should the trial court do with this?  Is this a stroke of genius which requires immediate, extensive briefing or a patent violation of Art. 1.052 Code of Criminal Procedure?  (providing that everytime we sign off on a motion, defense counsel attests that he or she has read the contents of the instrument and upon that lawyer’s knowledge, information and belief, represents that it is not groundless and brought for the purpose of harassment, unnecessary delay or other improper purpose.) Comments? 

Every time one goes through screening at any airport and is subjected to security enforcement measures by Transportation Security Administration officers, you get a little taste of what the Fourth Amendment is all about.  In 99% of these encounters, all pretty much goes without a hitch.  Occasionally, the right of the individual to be free from unwarranted intrusion clashes with the demands of security.  Steve Bierfeldt can attest to that.

Last March, Bierfeldt, a “developmental director” with a group which advocates on behalf of oddball ex-Presidential candidate Ron Paul, went through security at the St. Louis airport.  Stowed away in his carry-on was a tin box which contained about $4,700 cash.  TSA officers wanted to know where Bierfeldt obtained the cash and detained the man to find out.  He was taken to a separate room and questioned.  Unknown to those TSA officials, Bierfeldt had turned on his iPhone and recorded the entire interrogation.  It turns out that one particular TSA man felt that the presence of cash was immediately suspect and threatened Bierfeldt with arrest if he didn’t divulge the origin of the money.  Bierfeldt stood his ground and made clear that he didn’t have to answer any questions since he wasn’t under arrest and hadn’t been charged with anything.  Exasperated with Bierfeldt’s insistence that he was under no compulsion to answer questions, much less account for the cash, TSA officials notified law enforcement.  Once they were on the scene, Bierfeldt was immediately released and permitted to board his plane.  He later sought out the ACLU which filed suit on his behalf against Homeland Security.

In the suit, the ACLU argued that TSA officials had exceeded their authority once Bierfeldt cleared security measures for boarding by detention and interrogation.  Further, the lawsuit sought to clarify that carrying large amounts of cash is not and has never been illegal even though one is required to declare any amounts of cash over $10,000 on international flights.  Last week, the ACLU dropped the suit after the TSA agreed to amend its formal policy concerning the presence of cash.  An internal directive emphasized that airport security is primarily concerned with screening for weapons, verifying the identification of passengers and nothing more.  “Traveling with large amounts of currency is not illegal” was included in an interdepartmental memo circulated after dismissal of the suit.        

About five or six weeks ago, Hack noticed something over the wire that piqued interest but then, upon reflection, decided to let it go.  Now that “something” has, like an old penny or Jimmy Carter, come back for seconds.  Yesterday, state prosecutors out of Cook County, Chicago, Illinois made formal their accusations against former journalism students at Northwestern University of paying a witness to make a statement which would assist them in their investigation into the circumstances of a man whom the students currently claim was wrongfully convicted of a 1978 Chicago murder.  First, just a few words on the background to all of this.

Northwestern’s Medill Innocence Project has met with some spectacular success over the years by playing a major role in the release of eleven men from prison who were wrongfully convicted.  The sheer number of exonerated defendants, really a shocking statistic, was cited by the Illinois governor when he commuted all death sentences.  One of their latest cases involves Anthony McKinney, serving a life sentence for the murder of a security guard in south Chicago.  After three years of investigation, the project concluded that McKinney had been indeed wrongfully convicted.  And they came forward with a witness who claimed that he was present at the shooting and that McKinney was nowhere near.  Prosecutors now claim that the witness, Anthony Drake, has not only recanted the statement made to Medill students but accepted money from those same students in return for any inculpatory statement he provided the project.  Moreover, those students who took his statement knew full well what he wanted in return for the statement.  One of the former students involved in the case did acknowledge a payment of $60 to a cab driver but said it was to cover wherever Drakes wanted to be taken.  The prosecutors have also alleged in pleadings that the circumstances do not support the suggestion that this was any kind of journalistic endeavor but rather, bear all the hallmarks of a criminal investigation and should be analyzed as such.

At a hearing held yesterday in Cook County, prosecutors made these arguments behind their request for the students’ notes, time cards, e-mails, grade reports and other records pertaining to the McKinney investigation.  It will all have to be played out in a series of endless hearings which will drone on well into 2010 but hey, that’s the system and more often than not, it works.  What makes it particularly hard for the project is that apparently, their star witness, Drakes, took the $40 the cabbie gave him (after shorting him $20) and blew it on crack.  Oh man.  The next scheduled hearing is set for sometime in January when the project and the University can respond to the State’s subpoenas.

The public gets spoiled by the way high-profile cases are disposed of.  We usually expect and eventually demand these dramas played out before television cameras on CourtTV.  Failing that, the mandatory press conferences compensate for the lack of live coverage and provide the participants multiple opportunities to pander and prance.  So often, the really good work that a defense lawyer does behind the scenes produces the kind of result that doesn’t attract attention but clearly bears the imprint of a fine piece of lawyering.  Such was on display today in an Orlando, Florida district court when former astronaut Lisa Nowak entered guilty pleas to the charges of felony burglary of a vehicle and misdemeanor assault.  It brought an end to a case that had capitivated the nation and provided a legion of material for all the late-night talk show hosts.  The deal calls for much less severe punishment ranges than what the original charges - attempted kidnapping, burglary and felony assault - mandated.  In essence, the deal was cut as a result of the defense lawyer’s slow, methodical deconstruction of the prosecution’s case. (more…)

The Amarillo Court of Appeals reversed the 47th District Court yesterday in an unpublished opinion, State of Texas v. Lee Ann Lovington, slip opinion no. 07-08-0313-CR.  There’s valuable lessons to be learned here.  But first, let’s take a look at the facts so we can figure out why the prosecution won this one.

Two Amarillo police officers were engaged in serving an arrest warrant when they spotted two people sitting in a car.  It was near high noon.  There was no evidence that the area where the couple were located was termed a “high crime area.”  As both officers approached the vehicle, one of them observed, or so he testified at a suppression hearing, that the driver “positioned” himself in a manner where the officers’ vision into the car was blocked.  The officers “felt” that the driver was hiding something from them.  One of the officers requested ID from the driver and when he couldn’t produce it, he was ordered to step outside the car.  He was then cuffed for “safety purposes.”  One of the officers removed the driver to the patrol car while the other reached inside the car and removed a newspaper which was spread across the console.  Underneath was a handgun.  Concurrent with this discovery, the driver was being interrogated by the arresting officer.  When asked if there was anything illegal in the car, the driver responded by telling the officer that there as a gun in the car.  The officer who found the weapon in the car then took the passenger’s purse and rifled through it, finding methamphetamine within.  The driver was charged with unlawfully carrying a weapon whereas the passenger was charged with felony possession of methamphetamine.  Now here’s where it gets good. (more…)

The man who was responsible for navigating the American Civil Liberties Union through the turbulent 1960s, steering its focus onto criminal cases which could serve as a platform for signature issues, died on October 21 out in California.  Through the efforts of John de J. Pemberton, Jr., the organization doubled its size during his tenure as executive director.

Pemberton considered himself a militant civil libertarian who had to temper his aggressive tendencies with the more moderate factions which made up the ACLU board.  There was friction.  The first such scuffle involved the question of whether help should be extended to Vietnam War draft resisters, a fight that Pemberton won.  It energized those staff members working on the street level and reinvigorated management.  This led to an increased presence on the criminal docket for the organization.  With the advent of Miranda, Pemberton saw the ACLU as the vanguard in a jurisprudential revolution in criminal law.  Someone had to make sure that the lower courts enforced the law.

“We no longer think, that, because the Supreme Court says thus and so, the cop on the beat will behave that way.  But if the cop knows that the citizen he meets in the street will be able to get a lawyer and go to court, then his behavior will change.”

- New York Times Magazine interview, 1966

But the ACLU didn’t limit its representation to just the street people.  They took on controversial cases involving Black Panthers, the KKK, Lt. William Calley, Jr. of My Lai infamy. 

Pemberton was the son of a Mayo Clinic surgeon who graduated from Harvard Law School.  He served on the editorial board of The Harvard Law School.  So, he had all the credentials for a slot in the corporation; the table was set for this guy.  You name it.  But he chose himself, I guess.  He got involved with the ACLU fairly early on in the late 50’s, later serving as Chairman of the Minnesota branch from 1955 to 1958.  One of the cases he handled during those early days involved a white man who sued the local cemetery for breach of contract.  Turns out that the cemetery permitted burial of Caucasian only and it refused to carry out the performance on the man’s contract for burial of husband and his Indian wife.  Pemberton prevailed at trial on behalf of the couple.  So was launched a colorful career.