“Law enforcement officers have the obligation to convict the guilty”

These strong words are not mine.  They are in fact the Supreme Court’s from United States v. Wade in 1967.  If the police have the duty of convicting an accused, who’s duty is it to hold the police accountable to the public?  The criminal defense lawyer.  We are called to Police the Police.

The Voice for the Defense magazine contains a great message this month from TCDLA President Gary Trichter.  That message is that being a criminal defense trial lawyer is NOT all about winning.  In fact, our job is to fight for our client and uphold the United States Constitution?  Today I heard a wonderful description of a criminal defense lawyer’s role.  We are Officer’s of the Constitution.  We Police the Police.  Our job is to keep Police Officers in check and to serve as protectors of the rights and protections we are afforded by the Constitution.  We are the last protection for a civilian who has been accused of a crime.  We are the only ones standing up for an accused and the only ones standing between the accused and the people trying to convict him.

In dealing with a case such as a Blood or Breath DWI, we are External Quality Control. Our job is to verify the lab work performed that the State will rely on as evidence.  We have a duty to arm ourselves with special knowledge of the areas of scientific evidence so that we can insure that unreliable lab work is discovered and exposed when found.  We must present the issues we find in simple understandable terms and let the jury decide.  Our job is not to win but to investigate and defend.

When we have diligently defended an accused and insured their right to a fair trial, we have done our job.  Winning is certainly more but enjoyable but we can never try to achieve that goal to the exclusion of personal and professional values.  A win at all cost attitude is very damaging to the lawyer and to the system.  The costs associated with this mentality come in many forms, including, compromised ethics, a perception of low morals, damaged professional reputation and potentially a lessening of faith in the justice system held by the lay person and jurors.

Here is a link to the article: Voice for the Defense

Wednesday, November, 2, 2011, I celebrated 10 years being licensed to practice law.  The time I spent applying for law school, going through law school and then studying and taking the bar exam seemed to take forever at the time but 10 years later, looking back, it was just a brief moment in time.  The first milestone I achieved was becoming Board Certified in Criminal Law, but having 10 years under my belt now is another.  Here are some things I learned along the way so far:

1. You don’t know anything about practicing law when you get your bar card.
2. You THINK you know everything about practicing law when you get your bar card.
3. The worst kind of lawyer is one who has the “answer” for every legal question you ask them.  The smart ones say they don’t know and then find the answer.
4. Everything should not be a fight.
5. Say a little less than you know.  This goes for personal life and the law practice.
6. If you think you found a big problem in a piece of State’s evidence against your client, it probably isn’t. But even if it is, if you tell anybody before trial it will NOT be a big issue at trial.
7. Pay your bar dues on time.  I have seen colleagues suspended unnecessarily for just not paying their dues.
8. There is only one way to do your job as a criminal attorney  – be a TRIAL lawyer. Try jury trials, period.
9. If you want to go to Spence’s trial college, do it before you are married and have kids.
10. Be careful what you say to the media.
11. Keep your head up and eyes forward and fight for your clients and ignore what anybody says about you.
12. If you can find a mentor you are lucky.  Learning how to do anything is much harder on your own.  (I didn’t have a mentor).
13. If you do your job for your client over and over, you will not make many prosecutors happy with you…oh well!
14. Read everything you can about the area of law you practice and be the best in one area.
15. Seminars are great vacation excuses for your family.
16. Don’t give an internet marketing company your credit card info to hire them over the phone.
17. Don’t give any internet marketing company any money at all, ever.  Your competitor is paying them also and they can’t make you their number one priority.  Find someone who will.
18. Judges don’t know everything about DWI law like I assumed they did when I started.  This was one of the biggest revelations when I was new.
19. Lots of “DWI” lawyers don’t know much about DWI.  When asked, though, most have no problem offering some sort of answer and most of the time it is wrong.
20. Always request an ALR hearing, period.  There is no excuse for not doing so.
21. If a case is triable, TRY IT, even if your client can’t afford a trial fee.  You shouldn’t have taken the case if you weren’t planning on doing everything it would take to defend your client.
22. Nobody can make a shoe look as good as Weldon can.
23. Hanging out at Char is bad for a marriage.
24. Be nice to your staff.
25. Don’t assume Democrat criminal judges will be good for the defense.
26. Partnerships have low survival rates.
27. Start off with a Mac instead of a PC.
28. Be open and generous with knowledge you accumulate, younger attorneys need you.
29. You have to stop yourself before you argue one word too many!  Everybody will do this.  If you are lucky it will be just once.
30. If you seek any political position, know that you could end up being indicted.  Politics is a dangerous game.  Prosecutors are politicians.
31. Your family is more important than your practice.

The Independent Grand Jury investigating the BAT Van cover up finally ordered Rachel Palmer to appear and answer for her actions.  They also issued subpoenas for John Jordan and Jim Leitner.
Somebody may be waking up with an indictment under their Thanksgiving tree soon!

David Mitcham may have successfully figured out how to professionally and respectfully handle the DIVERT issue in Court 2, the issue being that Judge Harmon has (probably correctly) used his informal veto power and said he will not allow an otherwise qualified DWI defendant to enter into the DA’s makeshift deferred adjudication program for first time DWI offenders.

I have included a copy of the Motion to Dismiss Information David filed alleging that due to random computer generated court assignment, any person runs the risk of winding up in Court 2. Well if you are eligible for DIVERT and you wind up in Court 2, you have in the past been out of luck in getting into the DIVERT program even though everybody else who wound up in any other court can obtain the guaranteed dismissal.  This obviously isn’t fair to a person who winds up assigned to Court 2 and David made smart arguments based on his client being denied Due Process and Equal Protection of the law.  David merely asked for a dismissal so that the case could be refiled and have a chance of showing up in another court besides Court 2.  Judge Harmon granted the motion in favor of the defense even though the State was fighting it (just another immature decision probably ordered from a supervisor).

Kudos to Judge Harmon and David Mitcham.  Hopefully this has opened the door for across the board relief for all DIVERT candidates that find themselves assigned to Court 2 from now on.

A request to the DA’s Office, please concede. This is a good and just resolution to the DIVERT issue in Court 2 and please try not to interfere in the future.  I’ve heard many Assistant District Attorney’s state that their job is merely to “seek justice for the people of Harris County.”  Will it kill you to just stand by and let the Defense Lawyers do their job in their attempt to seek fairness, Due Process and Equal Protection from the Courts?  Thank you.

I was happy to hear about several lawyers leaving the DA’s office earlier this week.  Allison Secrest, David Natchigall and the “Lighthorse” Knox Nunnally.

I know these prosecutors and they have one thing in common, high ethics and integrity.  There are hidden land mines all around that office right now just waiting to be stepped on.  I think these few are smart to get out before it’s too late.  Good going.  You are above the antics occurring with Lykos as the, umm…leader.

Unfortunately, Carl Hobbs, And Steve Morris already had a limb severed in an explosion last week as they were demanding that secret grand jury testimony be turned over to them so that they can show Pat Lykos the substance of why she is being investigated.  Carl and Steve are now being ordered to Honorable Susan Brown’s court this coming Monday to explain what the hell they were thinking.  This is becoming such an amazing display of stupidity.  It’s one horrible decision after another.  It’s starting to be followed on a national level as the American Bar Association picked up the story yesterday.

http://www.abajournal.com/news/article/judge_sets_contempt_hearing_for_prosecutors_and_court_reporters_in_runaway_/

Local news station ABC 13 Eyewitness news ran a featured news story regarding the case in April where HPD officer Sgt. Ruben Trejo vehicle hit a school bus while drunk. Seven officers on the scene proceeded to attempt to coverup the fact that alcohol was involved with the accident, when in fact, officer Trejo’s blood alcohol was over twice the legal limit.

Two weeks after learning the officers were supposedly disciplined for their actions, we learn that one of the officers Assistant Chief Perales is  getting a new job with an increase in responsibilities. Some may call it a promotion of sorts. Even more shocking than the reward is the actual job duties itself. Perales will actually be in charge of HPD DWI task force and traffic enforcement.

ABC 13 interviewed Tyler Flood, who responded “I don’t know anybody that would think that’s a good idea.” and “What a terrible decision I think you could make putting this person in charge of the DWI unit,”.

Read the full story on ABC13 website here

Watch the feature video below or at the ABC13 website

Today, the Harris County DA’s office decided that instead of doing the right thing and dismissing all cases involving a breath test taken in the controversial Bat Vans, they drafted the attached one page “waiver” of all rights to fight a Bat Van case if the defendant still would like to go ahead and plead guilty.  This despite the huge bomb that was dropped in court when not only one of the state’s expert witnesses but two state’s witnesses said that the Bat Van testing is unreliable and that it is a “bad idea.”

What the DA’s office should be doing is conceding that they have major problems with the Bat Van evidence and completely dispose of all of these cases.  Instead, they put together some paltry words that they are calling a “waiver” that looks like it may or may not even be enforceable if a person did decide to pursue post-conviction remedies.  What bad form on the DA’s office.

As Clarence Darrow said, it is not a Justice System…it is just a system.  If the DA’s were concerned about justice they would not be making every attempt to make it easier for a person to plead guilty to a case where they already know they have huge evidentiary problems.  All this, while a current Grand Jury investigation is being conducted regarding this exact issue, the Bat Van reliability, and the fact that the DA’s office knew about the problems but failed to give defense attorney’s any Brady notices and completely ignored the problem.  To the DA’s office, Brady is merely, Peter, Bobby, Greg, Alice, Jan, Cindy, Marcia, and Carol and Mike…and don’t forget “Tiger” the dog.

Houston DWI Lawyer Tyler Flood was interviewed by the Chronicle last night
regarding one of his clients. Check out the article at below:

http://www.chron.com/disp/story.mpl/metropolitan/7702151.html

DPS now offers an indigency program to help individuals living at or below 125% of the federal poverty level pay surcharge fees so they are able to drive legally. This program does not waive surcharge fees but may reduce the amount you owe.

Each individual must apply by completing an application with a notarized signature and returning the application to DPS. If a person qualifies for indigency, the surcharge amount will be reduced by 10% not to exceed $250 (service fees will still apply). DPS will also remove the suspension of driving privileges while payments are being made and are current.

All surcharge fees assessed on or after September 30, 2004 are eligible for reduction under the indigency program if your application is approved.

To apply each individual must submit an approved application to DPS. The application must be completed in full and notarized. You can find the application at www.txsurchargeonline.com/indigence.aspx or you may call (866) 223-3583.

For more information on the program or questions regarding qualification, please contract the Texas Department of Public Safety at (866) 223-3583.

Examples of Poverty level posted on the DPS Surcharge website gathered from the Health and Human Services Department:

SOURCE : Federal Register, Vol. 76, No. 13, January 20, 2011, pp. 3637-3638

You can now check the status of your driver’s license online! No more waiting on hold with DPS for hours. By clicking the link below and entering your driver’s license number, date of birth and the last 4 digits of your social security number you are able to check the eligibility of your driver’s license. The information includes phone numbers and websites to help you get your license reinstated if you’re suspended for any reason or will show you that your license is clear from any suspensions or denials.

https://txapps.texas.gov/txapp/txdps/dlreinstatement/login.do