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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.

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.        

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…)

Legend has it that one day in New York, a young man from Brooklyn by the name of Bobby Frankel took $40 to the track, found himself “in the zone” by hitting the early daily double and other lucrative plays.  By day’s end, Frankel placed $3,000 of his earnings to win on a 3-1 shot.  The horse hit the wire first and he went home with $20,000.  Bobby Frankel never looked back and used the experience as a springboard to become one of the five greatest trainers ever to grace the backstretch at Belmont Park, Hollywood Park or Santa Anita. 

Frankel succumbed to lymphoma early this morning at his home in Pacific Palisades, California.  He had not been seen in public for the last six months as he battled the disease.  He shuttled back and forth from his home and Cedars-Sinai Hospital where he received treatment during this period of time, all the while monitoring his stable of thoroughbreds via cell phone.  In the end, it was too much.  Late Saturday, he asked to be sent home from the hospital so he could be with family and friends as the last hours approached.  He was as prescient about his pending demise as he was about the horses he sent out to the track.  What distinguished Bobby Frankel from the trainer colony, aside from his incredible racing resume, is that he started out as a gambler and then drifted into training.  Bobby Frankel may have been the only Grade 1 trainer who knew how to make a profitable wager at the track and train for profit. (more…)

There’s a new kid on the media block and it’s TexasTribune.org.  The Tribune is a nonprofit attempt to use an amalgamation of private donations, sponsorships, premium content and revenue from various sources to provide for a sustainable online journalistic model that neither depends upon or requires a print edition.  Heady stuff.  Its focus is on state politics - education financing, lobbying, bureaucratic priorities, state agencies and the like.  It’s about Texas politics and Texas public policy.  It appears to be the first of its kind here in the state.  Since I’m always looking for a good story, I’ll be hitting it.

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…)

Enough has been written about the shooting at Ft. Hood already to last lifetimes but someone has to weigh in on this factoid.  In addition to the usual litany of misdeeds and idiosyncrasies unearthed by the media in the wake of tragedies of this proportion, Fox News has reported that Major Hasan frequented the “Starz” strip club at least three times last month.  The establishment is located a mere one-half mile from the mosque where the wretched man prayed five times a day.  According to the manager, Hasan rented out private rooms and paid for lap dances in stays that lasted up to six hours.  And next door to the strip club is the gun shop where Hasan purchased the automatic weapon that he used to kill 13 people, using up over 100 rounds of ammunition over a span of 3 minutes.  By this time, we now know the FBI and Army Intelligence were aware of Hasan’s e-mail communications with a well-known proponent of militant islam and holy war.  I suppose they’ll have some explaining to do at the appropriate time before the appropriate congressional subcommittee but this picture of Hasan just gets creepier and creepier as the muck, dredged up by the media, piles up. 

I’ve mentioned before that I get all kind of catalogs and circulars on a variety of subjects.  Just this weekend, I pulled out of the P.O. box the 2009-2010 Johns Hopkins Books in the History of Science, Technology and Medicine.  Here’s a sampling of some of the more estoteric titles.

Looking For Few Good Males - Female Choice in Evolutionary Biology

The Modern Period - Menstruation in Twentieth-Century America

Motorized Obsessions - Life, Liberty and the Small-Bore Engine (“The reader will walk away with a much better appreciation of how these machines developed, their widespread use and the negative consequences associated with their operation.”)

Unspeakable - Father-Daughter Incest in American History (368 pages, no illustations, $50.00 hardcover, plain brown wrapper?)

The Evolution of Obesity (weighing in at a hefty 408 pages with 16 halftones and 48 line drawings)

The Electric Guitar - History of an American Icon

Brush With Death - A Social History of Lead Poisoning

The Technology of Orgasm - “Hysteria,” the Vibrator and Women’s Sexual Satisfaction (with 26 illustrations!)

and finally . . .

Sronger Than a Hundred Men - A History of the Vertical Water Wheel (a 1983 classic packed full of historical goodies, spread over 453 pages of text)

As I said, nice, light nighttime reading. 

Zenyatta’s electrifying win in the Classic may rank as the finest moment in Breeders Cup history and why not.  Given her running style and seemingly recent pedestrian speed figures, I thought she was vulnerable.  And I paid for that erroneous assessment in spades.  So good for her and good for racing because this filly really turned up the heat on the racing establishment.  She makes the game fun and that’s what it’s supposed to be.  I was wrong, the legion of California bettors were right and she’s the champ.  And the biggest disappointments from that race?  Repeat after me - Rip Van Winkle and Einstein.  Of course, both horses anchored my primary bets in the race.  RVW looked like a horse chained to a lamppost at the quarter pole he stopped so badly.  Perhaps he bled in the race.  He probably hadn’t faced that kind of pace over in England and simply couldn’t handle the speed.  But what about Einstein?  Maybe the horse just had an off day and didn’t want to run. 

Looking over my notes for the day, it was feast or famine in the other races.  The Juvenile Turf was as formful as it could be with the winner Pounced going off at an anticipated 5/2.  And California Flag ran exactly as I predicted.  I blew that exacta play by using runner-up Gotta Have Her in pick 3s instead of underneath the logical horses.  Dancing in Silk was a total surprise to me in the Sprint but he’s a California runner who benefitted from a torrid pace up front.  Remember that he kicked off the Pick 6 and with his payoff of $52.00, his win really narrowed down the pool.  It makes sense that there was only one Pick 6 winner with a ticket worth $1.8 million. (more…)