Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

The Dallas Morning News recently had a story about an English teacher who had been accused of sexually assaulting a student. Unfortunately, there is nothing unusual about that. However, the story quickly took an unusual turn. The following day the alleged victim contacted the reporter who covered the story, and explained that nothing had happened with the teacher. Instead, she said only stated something happened after the police officer refused to accept her denials.

You might wonder how that can happen. The fact is that does, and there probably a number of reasons for that. Most people are intimidated by police officers; young people are probably more intimidated. Most have been taught to respect authority, which certainly includes police.

As this case demonstrates, sometimes police won't take no for answer. In that situation, you have two options; either stick to your story, and be uncomfortable, or tell them what they already believe. You might wonder why they don't just get up and leave, but do you really think a teenager is going to do that.

Many times police investigators have made up their mind about what happened. Many times they are right, but when they aren't bad things can happen. Psychologists call this "overconfidence basis"; you are convinced you are right, and refused to accept the possibility you might be wrong. It can creep up, without any conscious effort - in fact, most people don't realize it's happening. It's a dangerous thing to do when someone's freedom and liberty are on the line. You often hear police officers say they can tell when someone is lying to them. There is no doubt they have a lot of experience in interviewing people. However, the fact is that no one, no matter how experienced, is good at discerning the truth. Research suggests that at best some of us may be right slightly more often than we wrong.

It's not hard to uncover the roots of wrongful convictions; this is it. In almost every case there was evidence that could established someone's innocence. The evidence was either ignored, or not followed up on because the police were sure they had the right person. Sometimes they were absolutely sure, which points out another problem. The more convinced you are of something doesn't mean you are more likely to be right.

Police officers have to make decisions, and form judgments. You can't expect them not to. Like anyone else, they can make mistakes. The best we can hope for is they recognize the possibility that they may not be right.

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Recently there has been a lot of discussion concerning President Obama’s pick for the Supreme Court. Not surprisingly, there are those who support the nomination, and those who don’t. Both sides try to frame their argument in terms of what a good Supreme Court Justice should be. Those arguments have descended to the point of ridiculousness.

The focus has become on the proper influence a judge’s background should have. Those opposing the nomination argue that it should have no effect; they view the comment that she sees herself as a Latina judge as offensive.

It is hard to come up with a more ridiculous argument. Everything about any person, from what you put on in the morning to what you eat for breakfast is determined by your upbringing and experience. We are all a product of our life experiences. Hopefully we have learned things along the way, but you cannot divorce yourself from who you are and more than you can change your physical make up.

The proper focus should be on what sort of person we want to be a Supreme Court judge. In the past it has been almost entirely federal court judges. Basically, it has been a promotion from one court to another. While there is some logic to appointing someone with judicial experience, there is also a drawback. More than any other court, the Supreme Court has an impact on every person in America. It specifically has an impact on those involved in the court system, especially the trial courts. Unfortunately, very few Supreme Court judges have ever served as trial court judges. To me, that is significant because they are telling those judges what to do, without any understanding of its impact. There simply is no similarity between a Court of Appeals judge and a trial court judge in terms of what they do on a daily basis. Courts of Appeals review cases on paper, while trial judges see cases as they are happening.

I’m all for diversity, and believe it will be a good thing to bring a different perspective. However, I question how different the perspective of Judge Sotomayor is really going to be. While she may come from a different background, her work experience is no different than the other judges. She has basically been a federal court of appeals judge; as such she has no more insight into the daily workings of the justice system than your average citizen.

Personally, I would like to see at least one judges who has worked “in the trenches”, whether it be a trial judge, or a trial lawyer. They see up close real people, and real problems, and see the effects those problems have on them. No one who has watched a mother sob uncontrollably as her son is led away to prison, or seen the effects of crime on a victim as they testify can say that has not effected them. They see good police officers, and they see those who they wouldn't trust to tell them the correct time. They know there is always more than one side to a story. They are in touch - as much as an outsider can be - with life on the streets. Unfortunately, I don’t think we will ever have a Supreme Court justice who can bring us that perspective.

Despite the rhetoric, I seriously doubt that Judge Sotemayor's nomination is in jeopardy. I hope she will bring a diferent insight to the court. I for one hope she is influenced by her background and upbringing. I don't see how that can be a bad thing.

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I recently posted about the decline in the number of investigative reporters, and the effect that would have on death penalty cases. Almost on cue, the Texas Observer came out with its second article looking at cases where convictions have been based on faulty arson evidence.

Granted, this is not a death penalty case. Also, in the interest of full disclosure, I admit this is a case I am working on. Despite that, this is an important issue, which has been getting an increased amount of attention over the last couple of years. Arson is one of those areas of "junk science", and may well be the worst. For years, so called experts testified about things that were at best guesses and speculation. They often testified about how the fire "talked to them", and how they could determine what happened from looking at the scene. The problem is that they know nothing about the scientific principles of fire; most were nothing more than fireman, whose sole training came from other firemen.

There are no telling how many people are in prison for something that was nothing more than an accident. Although there has been publicity, it is has not gained attraction like the DNA exonerations  have. Hence the need for investigative journalists. Unless they are there to get the story out, these people have no voice. Lawyers face an uphill battle in these cases; that battle is easier when public sentiment is our your side - which doesn't happen with the journalists. Anyone who doubts that need only look at the DNA cases, and the widespread acceptance among the general public that innocent people are convicted. That sentiment wasn't there 10 years ago - back then most people would say innocent people are seldom - if ever - convicted.

So to Dave Mann and all the other investigative journalists out there, keep up the good work.

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The New York Times recently had an interesting story concerning the budget cuts for many newspapers. The story pointed out the potential effect such cuts would have an innocence cases. You might wonder how cuts to a newspaper would impact convicted defendants. The answer is quite simple; a significant number of exonerations have been based on the work of investigative reporters. Such reporting is generally the first to go when newspapers start cutting costs. While it can generate readership, it does so with significant costs.

So why do we need investigative reporters? The most obvious answer is that they have two resources many lawyers do not have; money and time. Innocence investigations often involve massive amounts of time; which is something few lawyers have. Even if they had the time, they seldom have the resources a newspaper can devote to a case. Innocence Projects are free from some of the constraints that private lawyers operate under, but they have their own constraints; they have to weed through thousands of cases, and determine which ones to devote their limited resources to. Few have big staffs, and most utilize volunteers for the bulk of the work.

There's another reasons why reporters are effective - they know how to investigate. They do it every day. Investigative technique is not something taught in law school. A certain type of skill is necessary, which few lawyers have. I've had the privilege of working with several excellent journalists over the years, and that has made me acutely aware of how lacking I am in the skills necessary to be an effective investigator. Reporters are trained to get to the bottom of a story; they know what to look for, and how to look for it.

I think there is also another reason why reporters are so effective - people want to talk with them. I'm not talking about politicians, and business people, but ordinary, every day  people. They are flattered when a reporter wants to talk with them, and often bend over backward to help. In contrast, most people avoid lawyers like the plague. When they do talk, they guard their answers for fear of what you are going to do with the information. There's been more than one occasion where I have seen a reporter get information that a lawyer and even their investigator could not obtain.

I wholeheartedly agree that cuts in investigative reporting are going to have a negative impact on cirminal justice. There will be many defendants who will have to serve out their sentence because there is no one to take up their case. I wish I had an answer; maybe help will come from the blogosphere. There are already a number of reporter who have switched over to getting their information out through the internet.

For all those reporters who are getting laid off, thank you for what you done. I hope you find to continue to your work.

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The use of fingerprints has been around for a number of years. If you have ever been in a court room, you've heard the statement that no two people have the same fingerprint. While that sounds convincing, there is no evidence or research to back it up. For the most part, fingerprint evidence has avoided scientific scrutiny. Instead, it has been accepted by all those involved, including defense lawyers, as accurate.

The reliability of fingerprints is questioned in the recent report by the national research Council, on strengthening scientific evidence. In their report, the Council examines friction Ridge analysis, which covers fingerprints, palm prints, and soul prints. The report contains several startling statements.

Before going further, the terminology used must be understood. The technique used to examine prints is described by the acronym a ECE -- the, which stands for analysis, comparison, evaluation, and verification. The Council notes that this mess did does not specify particular measurements or standard test protocol, and the examiners must make subjective assessments there out. The Council notes that the standards are deliberately kept subjective. We'll they also note that the outcome of friction Ridge analysis is not necessarily repeatable from examiner to the examiner, and cited research which shows that experienced examiners do not even agree with their own past conclusions when presented in a different context.

Over the last several years, some of the problems with fingerprint comparison have been discussed. The problem is not with comparing a set of ink fingerprints. Instead, the problem is in comparing prints left on a surface. As the Council notes, a small stretching of distance between two fingerprint features, or a twisting of angles, can result from either a difference between the fingers that left the prints are from distortions from the impression process, which means analysis must rely on subjective judgments. In other words, an examiner must not only determine what he is looking at, but how relevant the impression is.

In its summary, the Council concludes that the current methods do not guard against bias, are too broad to ensure repeatability and transparency, and do not guarantee that two analysts following it will obtain the same results. For that reason, merely following the steps of the excepted method does not mean an examiner is proceeding in a scientific manner, or producing reliable results. The Council also notes that it has reviewed the available scientific evidence on the validity of the process, and has found none. And a minimum, the Council notes that absolute opinions are not appropriate in this area.

The report is must reading for anyone who has a fingerprint case. We cannot accept the opinion or conclusion that a print belongs to our client. As with many disciplines, the problem will be finding someone who can explain the process. I suggest that will not be another fingerprint examiner, who will operate under the same old assumptions. This is not an exact science, and never should have been considered as such. Hopefully, courts will become more sensitive to the problems. It's our job to make sure that happens.
 

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McLennan County has hopped onto the bandwagon, and will have "no refusal weekend" over memorial day. That means if you are arrested for DWI you won't have the refuse to provide a breath or blood sample. If you do they will get a search warrant and obtain a blood sample. There are so many things wrong with this that I don't even know where to start.

As you would expect, this is being touted as a way to keep drunk drivers off the road. I realize that politicians and law enforcement have a problem with logic, but this goes to the extreme. How does this prevent DWI? You have already arrested the person; they are already off the street. Maybe the argument is that it will deter people from driving while drunk; if so, where is the evidence of that? Other counties have implement this policy - have they seen a drop in DWI arrests? I seriously doubt it. Most people don't rational decisions, especially after they have been drinking. Do you really think someeone is going to not drink, or not drive, because they don't want to give a blood sample? Most people don't think they are going to caught in the first place.

There is another flaw in this argument. and that is that people get off DWI charges because they refuse the tests. That is true in some cases, but who's to say those people wouldn't pass a blood test. The reality is that most people arrested for DWI end up getting a conviction. Maybe this will increase the odds, but probably not by much. The bigger question is whether it is worth it.

I also wonder about what happens while officers are getting warrants, and taking defendants to have their blood drawn? They certainly aren't on the streets. Maybe your chances aren't as great of getting caught, because the officer won't be on the street? If you are going to abandon logic, you can just as easily this will increase the number of drunk drivers on the road.

The biggest problem I have with this is what it says about our criminal justice system. We give all citizens certain rights. Is that a burden to law enforcement - sure it is. It would  be a lot easier to arrest someone, and force them to give a confession - by force if necessary. Our country was founded because we wanted to get away from that. Is forcing you to provide a blood sample that much different. Rights are eroded a little at a time - is this the first step.

The legislature has said you consent to giving a sample if you drive, and if you don't you are penalized. We are now saying that you don't have the right to refuse. I have a problem with that. People always complain about judges making the law; isn't that what they are doing here? If the legislature wants to change the law, they are free to do so - after debate, and subject to getting voted out of office of course. We shouldn't be circumventing the process though, and going through the back door.

No one should drive while you are intoxicated; unfortunately, some do. However, there must be limits to solving crime; I would suggest the limit is when the government has to violate your body. Are the streets really going to be safer this weekend? I seriously doubt.

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The Texas Court of Criminal Appeals issued a significant opinion today on DNA testing. In Esparza v. State the Court reversed both the trial court and the Court of Appeals, both of which had denied his request under Chapter 64 for post-conviction DNA testing.

Esparza had been convicted of aggravated sexual assault. He met two women at a bar, and ended up giving them a rode home. On the way, he raped one, the other got away. The actual victim could not identify him, but the other woman did, as well as another person at the bar. Additionally,  he had given them a business card, with his name on it. He denied guilt at trial, and presented an alibi. The jury ultimately convicted him, and sentenced him to life.

In rejecting his request for DNA testing, the court focused on two things. One was that victim admitted she had sex 2 days earlier. The court concluded that because of that, evidence of a third party donor would be meaningless (the trial attorney actually admitted this at trial, although I can't come up with any rational explanation for making such admission). In other words, the court found that she had sex with someone else, if the testing excluded Esparza it must be the other person.

The CCA (yes, the one with Sharon Keller) found several problems with that argument. The most glaring was that it was based entirely on assumptions. One assumption was that  her partner ejaculated in the other incident. Another assumption was that she didn't do anything to clean herself up in the interim. And finally, there was no testimony that there would still be evidence to recover from an incident two days earlier. In other words, you have to more than guess; your guess has to actually be supported by the evidence.

The Court concluded that if the DNA tests excluded him, there is a reasonable probability he would not be convicted.

You still have the identification, which appears fairly supported because of the business card. (BTW - it showed him working as a paralegal for the lawyer who ended up defending him at trial) The court's rejection of this argument is truly astounding. They held that the eyewitness identification of the two witnesses was "of no consequence". They also held that:

In sexual assault cases like this, any overwhelming eyewitness identification and strong circumstantial evidence (e.g. Esparza's business card, light-blue four door car, age and the fireworks on the floorboard) supporting guilt is inconsequential when assessing whether a convicted person has sufficiently alleged that exlculpatory DNA evidence would prove his innocence under Art. 64.03.

Maybe I'm reading too much into it, but to me that suggest the Court has finally recognized just how unreliable eyewitness testimony really. It's no longer enough to say you have an eyewitness ID, even if supported by other evidence. I think that has application in other cases; not just Chapter 64 requests.

I can't believe I'm happy about a Court of Criminal Appeal opinion. but I am. I'm not expecting this to be a trend though.

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Last week it was reported that Walmart agreed to pay  nearly 2 million dollars and improve security in its stores in order to avoid prosecution for the trampling death of a temporary worker. The death occurred on the Friday after Thanksgiving, when hundreds of bargain hunters were lured to the store with the promise of low prices. Shortly after the incident the Nassau County DA stated they were launching an investigation, and considering criminal charges.

I'm sure a criminal prosecution would have been difficult, and I can understand why the DA went this route. I'm sure Walmart had great lawyers, who had unlimited resources at their disposal. What bothers me about the settlement is the double standard Walmart this standard demonstrates. Its not the double standard of rich and poor defendants, which certainly exists. Instead, it is the difference between how Walmart treats offenders, and  how they want to be treated.

As you can probably imagine, Walmart has more than its fair shair of shoplifters. Most criminal defense lawyers have handled at least one case where the person shoplifted from Walmart. As you might expect, Walmart has a policy.  They seldom lose anything, since most shoplifters are inept, and get caught walking out of the store. However, Walmart, has found a way to make money out of this. They routinely send demand letters to shoplifters, requesting payment of a civil penalty, to compenstate them for their trouble in catching you. Sadly, many people pay the money, and assume that is the end of the problems. Of course its not; the case is still prosecuted, and Walmart will not agree to "drop charges".  Unlike Walmart, most people can't get by with simply paying a fine. They still have to go court, and defend against the theft charges. Most end up with a theft conviction, which has long lasting consequences.

Many who shoplift do it out of necessity or stupidity. I can't guess how many students I have seen caught at Walmart. If they can't avoid a conviction, they end up with a mark that is devasting to their career plans. Most would gladly do anything to avoid that; including paying money, and doing community service.

I'm sure it would never occur to them, but now that Walmart knows what it is like to be a criminal defendant, wouldn't it be nice if they showed the compassion and understanding they were shown.

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The case against Charles burst into the news last year when his lawyers discovered that the Judge who presided over his case was in a relationship with the District Attorney at the time of the trial. Needless to say, they had done everything possible to prevent anyone from finding out. While that is interesting enough, the case becomes more interesting when you learn that the judge went on to serve on the Court of Criminal Appeals for a period of time; the same court that will have to decide the habeas petition filed by Mr. Hood.

Last week, the current trial judge entered findings in the habeas proceeding. Among other things, he found that Mr. Hood could not be faulted for not raising the issue sooner. Predictably, the State had argued that the issue had been waived because he had waited too long to raise. To his credit, the judge found the fault for not raising the claim earlier lay on the District Attorney and the Judge; they went to great lengths to cover up the relationship, and shouldn't be allow to benefit from their success in doing so.

The case now goes to the Court of Criminal Appeals - several of whom served with the Judge. They have to decide whether to accept the findings, and if they do, what to do with the case. CBS news reporter Andrew Cohen seems to think there is no way Hood will not get a new trial.  I'm not so sure; the Court certainly has a history of rejecting equally compelling claims.

If the court frames the issue as whether the judge was impartial, they could look at the decisions made during trial. They might conclude it did not appear she was favoring the State. Of course, that doesn't pass the smell test, but neither does many of the things the Court does.

Mr. Cohen also suggests the current DA follow the lead of the U.S. Attorneys in the Ted Stevens case, and dismiss the prosecution. The problem is that they have no authority to do so. Mr. Hood has already been convicted, and sentenced. The only one who can undo that is the Court of Criminal Appeals. They could agree that the a new trial should be granted, but the final decision is still up to the court. They do not have to accept the State's recommendation, and they have found against defendants before when the court and prosecutor both believed relief should be granted.

I believe this may be a test for the court.. They have certainly done much to bring disfavor on themselves. This would be an opportunity to start on a different direction. While a decision to grant relief in this case won't solve their credibility problem, it won't make it worse. On the other hand, public opinion of the Court can't get much worse.

We have become conditioned to have low expectations of the Court, espeically in death penalty cases. I

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