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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  That’s the conclusion of the Amarillo Court of Appeals in an unpublished opinion which reverses a Lubbock County trial judge’s order of suppression.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…)

I received some comments on yesterday’s post regarding Joe Dawson and the wake held at Burberry’s yesterday evening.  These posts will not be published in their present form for obvious reasons - they are ad hominem attacks laced with profanity.  I have invited each writer to resubmit their thoughts and feelings in proper form.  If this is done, they shall be published.  Each writer has taken me to task for, in their collective opinion, defaming Joe Dawson and his memory.  In this they are mistaken.  My purpose was clear or at least I believed that to be the case.  The venue of the memorial was, in my opinion, inappropriate given the circumstances.  I think it’s a valid criticism and particularly so since I have written on this exact subject in the past and no one then had a thing to say about it.

I want to emphasize that I am really saddened by Joe’s passing.  I honestly don’t think there was a venal, malicious bone in his entire body.  That’s what I liked about him.  But there’s lessons to be learned from Joe’s travails in his life.  It’s fair comment to address them.      

I was saddened to read in yesterday’s Amarillo Globe that Amarillo lawyer Joe Dawson had passed away at the age of 45.  We all knew he was in very bad shape, that he had suffered over the past year and how he got so sick in the first place.  I’m going to bull on ahead here and talk about what everyone seems not to want to address.  I wouldn’t be writing this if I hadn’t come across a notice from the PCDLA webserver that a memorial to Dawson will be held at a local saloon this evening.  I’ll put this as adroitly and tactfully as I can.  But honestly - and I address this to all of Joe’s dear friends - is this truly the appropriate thing to do when we all know what killed Joe?  He drank himself to death.  Is this how we want to remember Joe Dawson; is this how we want to remember ourselves in memory of the man?  (more…)

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? 

Yesterday, Hack received his monthly issue of “Voice for the Defense,” the Texas Criminal Defense Lawyers’ Association publication.  It’s worth a quick scan before being tossed if only to see if there’s an article or two worth cutting out and filing away.  There wasn’t but a couple of items did catch  my eye.  

First, there is the “Editor’s Comment,” a regular feature where the current editor can expound on any given subject.  It seems to me that this bully pulpit is an excellent vehicle to stir something up but sadly, it has never been utilized in such a way.  The editor for the year usually exhorts members to be more like Atticus Finch and this month’s column was no exception.  Editor Greg Westfall’s contribution was entitled “What Does It Mean to Be a Criminal Defense Lawyer?”  It should have been titled “What Does Any of This Mean?”  Apparently, Westfall was deeply offended by David Martin, whose name will ring in infamy from here on out in the rarified atmosphere of the TCDLA  Austin headquarters, as a result of that lawyer’s rash, unwise decision to engage in an interview with Anderson Cooper of CNN.  You see, Martin defended Cameron Todd Willingham, a death row inmate who was executed back in 2004.  Several arson experts have now banded together and challenged the findings of the prosecution team’s experts who testified that the fire which killed several of Willingham’s children was intentionally set.  Many death penalty critics have pointed to the Willingham case as a textbook illustration of what’s wrong with capital punishment in Texas - shoddy police investigation, incompetent defense counsel, a general sense of urgency that fuels a rush to judgment which resulted in the execution of an innocent man.  These folks seem to have the upper hand in the argument about now and Gov. Perry’s decision to replace the chairman of the forensic commission, charged with examining these claims of innocence, with his own hand-picked clone didn’t help matters.  But why smear the hapless lawyer who defended Willingham?  (more…)

Here’s an interesting twist to an individual’s entitlement to an expunction.  In El Paso County, Justin Patrick Jones entered into a plea agreement which stipulated that the charge of possession of marijuana under two ounces would be dismissed upon his completion of a pre-trial diversion program.  As a prerequisite to enrollment in the program, Jones had to sign off on a written waiver of his right to expunction.  Jones completed the program, the information was dismissed and then eight months later, filed a motion for expunction.  The trial court granted the motion. 

On State’s appeal, the El Paso Court applied simple, basic contract law to the scenario and holds Jones to his contractual bargain.  Since Jones never argued that he was prevented from reading and reviewing the agreement by any kind of trick or artifice, he is bound by his agreement.  Further, his agreement was not ambiguous and he clearly waived that right in return for enrollment in the pre-trial diversion program.  The record shows that Jones knowingly entered into the waiver agreement and even if he didn’t understand the word “expunction,” as he claimed at his expunction hearing, that fact does not excuse him from the legal effect of the contract.  The trial court’s order of expunction is reversed and judgment rendered denying Jones the petition for expunction.  Practitioners, we have been warned. ITMO Expunction of Justin Patrick Jones, No. 08-08-00065-CV, El Paso Court of Appeals, September 30, 2009.

Hack has written about that pesky “non-refundable” retainer before (see “Ah, that ‘non-refundable’ retainer,” September 12, 2007, posted under Courthouse gossip, Criminal defense bar, Items of Interest).  A new case seems to give the whole idea a different twist.  Anyone who contracts on the basis of charging wholly “non-refundable” retainers should take the time to review a recent opinion out of the El Paso Court of Appeals, Foley v. Daniel and Moore, slip op. no. 08-07-00188-CV, October 15, 2009. (more…)

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…)