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

Every criminal defense lawyer has had clients who think they know more than anyone else, and refuse to acknowledge reality. For reasons I can't explain, they are usually the clients who are obviously guilty - and there is no defense. There are multiple eyewitnesses, or physical evidence, a confession, or some combination thereof. In those case, the only question is generally how much time are they going to do.

Your first hint that there might be a problem is when you convey what you believe is a reasonable offer, and the client responds with  "I can't do that much time". Logic would say that if you can't do that much time, you certainly can't do more, but they never seem to grasp that. Instead, they seem to believe that the prosecutor really cares what they think. I have no idea where this comes from. In some cases, the person has always gotten what they wanted, and they assume it will be the same here. Others just don't think the same way everyone else does. Mark Bennett recently commented on this, noting that there are some people you simply can't reason with.

The client who knows better than you is frustrating for many reasons. Most importantly for me is that their case almost always ends badly. I want to do the best for each client, and I take it personally when they end up with more time than they should. You always wonder if there was something you could have done differently.

I'm writing about this because I just finished another one of these cases. It had been dragging on for a long time, and has been set for trial several times. Each time the offer went up - you can't blame the prosecutor, because they had a great case. In the end, the client recognized he didn't really want to go to trial - maybe he knew that deep down all along. By the time he made that decision though, all the offers were off the table. Basically, he negotiated himself a worse deal - when it should be the other way around. Unfortunately it's not the first time I've seen that, and I'm sure it won't be the last.

I'm not sure there is answer for this, or a best way to handle. Maybe there are some people who you can't reason with. If anyone has the answer, I would love to hear it.

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As expected, the Texas Forensic Science Commission meeting yesterday has been extensively. I believe the initial strategy was to delay, and hope interest in Willingham would die down. Thanks to the efforts of numerous groups, that has not happened. Apparently the governor's office finally realized they were going to have do something - in other words, on to plan B.

I have always had serious concerns about the Forensic Commission taking up the Willingham case. I never for a minute thought the state would admit they executed an innocent person - no matter how obvious it is. Although I knew no one could attack the scientists who have critiqued the investigation, that has never stopped the State before. They are the State, and for many it's enough to say we don't believe it. I always thought the most logical approach was to admit there were problems, but claim they did the best they could at the time. In fact, that is exactly what they did.

For awhile I got my hopes up. The first Chairman  (or presiding officer) was Sam Bassett. He apparently didn't get the memo, and mistakenly thought the commission's job was to investigate, and uncover problems. They did that - and we all know what happened when they were close to discussing the report of Craig Beyler. What I didn't know before this week was some of the behind the scenes maneuverings.

I wrote last week about the memo that was prepared on the issue of jurisdiction. Sam Bassett submitted a response, which he was kind enough to share with me. Needless to say, he thought the commission's jurisdiction was not  so limited. He noted the memo was employing an extremely restrictive - and in some cases nonsensical - reading of the statutory language. He also pointed out that this discussion had already taken place. The following is from Mr. Bassett's memo:

In February 2009, when questions concerning the authority of the FSC to conduct the investigation on the Willingham and Moon case were raised by members of the Governor's staff, the undersigned personally contacted Senator Whitmire's office to ensure the FSC was not overstepping its authority. On February 26, 2009, Larance Coleman, who advises the Senator on criminal justice issues, stated to the FSC chair that the FSC was doing what it was supposed to be doing.

The focus on the recent memo was on ascertaining legislative intent. The memo did everything but to go the source - i.e. the legislators who passed the bill authorizing the commission.

Mr. Bassett also addressed Mr. Bradley's concern over defining professional negligence and misconduct. That had also been discussed, and decided. The previous commission recognized that professional organizations did not define those terms, and therefore there was no recognized definition. They concluded they would be overstepping their authority to define terms that the legislature itself had not defined. Of course, the lack of such authority was not impediment to the current commission.

I think the clear reading of all this is that the governor's office did not like the way the commission was operating, and tried to change it. When that didn't work, they did what only the governor can do - change the commission. There should be no doubt that the current chairman knows what the goal of the commission is. So far, he appears to be right on target.

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This is my second post on articles from the American Academy of Forensic Sciences Journal. An article that jumped out immediately was "Paradigm Shift for the Alcohol Breath Test" by Michael P. Hlastala. 

Breath testing was developed to determine a person's blood alcohol level. All states define intoxication of terms of the level of alcohol in a person's blood. The best way to test is that is of course to take a  blood sample; however, that takes time; breath testing and easy and quick. Something that can be done by a police officer.

Breath testing is based on the scientific principle that there is an exchange between air and the blood system. You breath in air, which is transferred to your blood system in the lungs. Breath testing is based on the idea that you can estimate a person's blood alcohol content based on the levels in their deep lungs - alveolar air. A mathematical formula is used, which is recognized as being an assumption. The formula is basically an average, which does not apply to everyone.

For any test to be valid, the underlying facts must be valid. According to Dr. Hlastala, the facts supporting breath testing are far from settled. At the beginning of his paper he notes:

In spite of the considerable effort that has gone into the studies attempting to validate the breath test, forensic scientists and toxicologists still have only a basic understanding of the physiological aspects of the the alcohol breath test (ABT) and associated limitations.

The "old paradigm" assumes the amount of alcohol in the breath remains constant as it goes through the lungs. It turns out that is not accurate. In fact, the amount varies - sometimes significantly. The result is that the actual blood alcohol level may be over or under-represented.

The new paradigm recognizes that alcohol is deposited in the airway surfaces during both inspiration and expiration. It also recognizes that the alcohol that comes out in the breath test comes from airway surfaces rather than the alveolar region.

The conclusion reached in the article was:

It is time for forensic scientists to re-examine the ABT to consider the importance of alcohol interaction with the airway tissue during both inspiration and expiration. the result of this interaction is that the breath test is fairer for some subjects than others. Another consequence is that the BrAC continues to increase as the subject continues to exhale. The resulting end-exhaled breath concentration is only partially related to BAC. And, therefore, the ABT exhibits much more variability than previously recognized.

The author recommends decreasing the importance of relying on threshold levels - especially for determining penalties. he also recommends that some margin of error be recognized. Of course, that will never happen, but it something to consider when you have a client that is only slightly over the limit. Based on this research, they may or may not be legally intoxicated.

In Texas, limits are important for not only determining whether someone is guilty or not, but also for determining whether certain conditions are going to be imposed - such as a interlock device. The validity and accuracy of the breath test results is therefore critical.

This article does not break new ground - problems with breath testing have long been recognized. Those problems must be explored - especially in marginal cases. Where someone's future hinges on a machine, the least we can do is make sure the machine is accurate.

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I'm one of the newest members of the American Academy of Forensic Sciences, and was anxiously waiting for my first journal. It arrived several weeks ago - in 2 volumes - and I started looking at the articles. Most are highly technical - but there are a few that deal with criminal justice issues. I'll cover other topics in subsequent posts,  but thought I would start with an article on fingerprints.

The title is "Emotional Experiences and Motivating Factors Associated with Fingerprint Analysis", and was written by David Charlton, Peter A.F. Fraser-Mackenzie and Itiel E. Dror. They conducted a study to determine what impact emotional factors had on the typical day to day work of a fingerprint examiner. Despite what many believe, fingerprint analysis is not as objective - and cut and dried - as many people think. Other studies have shown that the same fingerprint examiner may not reach the same conclusion - depending on the background information provided. So what did they find out?

What is certain as a result of this study is that fingerprint examiners not only are emotionally driven and motivated to achieve results for themselves, their employees, police and wider society, but also are influenced by more subtle psychological factors such as need for closure that exert leverage upon the decision-making thresholds of examiners that may, in the right circumstances, lead to erroneous conclusions should the context and the motivation be strong enough.

So what does that mean? One thing they discovered was the need to close a case - which is strongest in high profile and serious cases - may result in the decision threshold being lowered. In other words, they are more likely to call a match. As you would guess, the examiners wouldn't be aware of such influences, and would probably feel they had been objective and reached the correct result.

This article is yet another attack on the sacred position of fingerprints. They are not the error proof - definitive evidence - that fingerprint examiners have always tried to convey. In other words, fingerprint examiners can be wrong. By identifying the potential for mistakes, not only can bad identifications be challenged, procedures can be put in place to limit mistakes in the future.

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I was going to talk about the ridiculousness about the recent memo from the Texas Forensic Science Commission.  Basically, the memo says they don't have jurisdiction to do anything. They concluded that they do not have "discretion or power to investigate any and every complainant alleging professional negligence or misconduct involving a forensic science." The complaint must involve a "discipline" recognized by the DPS and accredited by DPS. In practical terms, that means they can't investigate the Cameron Todd Willingham case. Yes, I know he promised that would not happen, but anyone who actually believed him deserves what they are getting.

I decided not to talk about that decision, because by now everyone knows what to expect from  the commission. Their goal - at least under the leadership of John Bradley - has been to scuttle the investigation into Willingham, and anything else that might hinder law enforcement.  He has successfully done what many lawyers attempt - avoid doing anything. This new memo goes a long way to ensuring that they will not get involved in anything meaningful.

What struck me about the memo is the power DPS has to both decide what is a forensic discipline, and who gets accredited. DPS is not without its own problems, but despite those problems they apparently have the all knowing ability to determine who should or should not be accredited. It reminds of a story a someone told me about an individual who couldn't  get certified as a fire investigator. He ended up establishing his own organization, and certified himself; that organization now certifies others.

DPS is an arm of law enforcement, and no matter how hard they try they cannot divorce themselves from their identity.  One of the main recommendations of the National Academy of Sciences was that crime labs be separated from law enforcement. If the crime lab should be separate, then surely the authority to accredit such labs should also be separate.

Another thing that struck me, was  the definition of what is a forensic discipline. If it's not a forensic discipline, then no accreditation is necessary. The legislature exempted certain things, and DPS is given authority to exempt others. There are at least two that stand out in the legislature's exemptions - latent fingerprint examination and breath tests. If those two areas don't involve forensic analysis, then what are they? Fingerprint examiners like to talk about how their "scientific" their process is. As for breath tests, the very tests are based on scientific principles. The reason for exempting them probably lies in the fear that they might not be able to overcome the strict scrutiny given to other forensic disciplines.

The commission meets next week, and no doubt will discuss this memo. My guess is that it will be repeat of the last meeting - they will spend all their time talking about what they can and cannot do, and avoid actually doing anything.

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You might think a DWI is a DWI no matter where you get it. To a certain extent that is right, but a post several weeks by Robert Guest started me thinking about  the differences in handling DWI cases among different counties. Robert was talking about DWI cases in Kaufman County, and Imuch of what he said applies to DWI case in McLennan County. Although I don't often travel outside McLennan County, I will occasionally go to Hill County, Falls County or Bosque County. And there are differences in the way DWI cases are handled.

If you get a DWI in McLennan County you can expect that you are going to either have to go trial or accept a plea - usually for probation. I know you can find all sorts of stuff on the internet from lawyers about getting charges reduced or dismissed. Generally that is nothing more than an attempt to get your money. Giving them the benefit of the doubt though, I know there are some counties where that is a realistic possibility. I have seen cases where someone has been able to get a DWI charge reduced - it used to be public intoxication, but the current trend seems to be reckless driving or obstruction. I can tell you that is not going to happen in McLennan County. That doesn't mean it never happens, but it's going to be an extremely unusual situation where that occurs.

The assistant District Attorneys in McLennan are competent, and don't mind trying cases. Most of them are fairly young, and the reason why they went to the DA's office was to get a chance to try cases. The thought that prosecutors don't want to try cases is a myth in most cases - they don't mind trying them, and certainly aren't going to bend over backwards to avoid doing so. Prosecutors in McLennan County try more than a few DWI cases - and they know what they are doing.


The biggest difference btween McLennan county and other counties is in discovery. Most counties now provide copies of the offense reports - and most importantly the video. There are some places that have gone to providing that information online - Tarrant County seems to be at the front on this - they have a system where local bar members can log in and get copies without leaving their office. In McLennan County your attorney has to physically go to the District Attorney's office and review the file and the video. Copies of the video will not be provided, so you  probably have to look at it several times. Because of the inability to obtain discovery many attorneys will request Administrative Law Hearings on the license suspension. DPS will send copies of the reports before the hearing, and a subpoena can be issued for the video. That must be done quickly - the ALR hearing must  be requested within 10 days after you are arrested.

In McLennan County DWI cases are processed like any other cases. They are filed in one of the two County Courts of Law. When you are released on  bond you will be given a date to appear in court. That date is basically an initial appearance. The purpose of the hearing is to find out if you are represented by lawyer, or if you are going to need appointed counsel. If you have hired a lawyer before the hearing date your lawyer will make an appearance for you, and you will not have to show up. You will be given a new court date, which will be approximately 60 days away. Before the next court you should have some idea of what you are going to do on your case - that is, whether you are going to enter a guilty plea or go to trial. If you decide to take the case to trial you will be given another date; this time for a pre-trial hearing. Any motions will be presented at the pre-trial hearing. Those motions could include a motion to suppress either attacking the initial stop or the tests performed.

In addition to hearing pre-trial motions the court will also a trial date. That is the date your case is scheduled for trial. In McLennan County DWI cases are no different from other misdemeanor cases - if you get a trial date your case will probably go. The docket is not so big that you have to wait for your case to move up the list.

Most of the time cases start on Monday. If the court is going to try more than one case you may start on Tuesday. The courts will rarely try more than two cases in a week. Pleas are done on Thursdays so the Court want to have trials finished before then.

The trial of DWI case is McLennan County is not much different than anywhere else. Most of the trials last no more than two days,and many are concluded within a day. As I said before the prosecutors here are competent, and know how to try cases. Since it's not a large county, the officers involved probably have testified before, so they know what to expect.

DWI cases are unique for several reasons. The most significant is that it is the only criminal offense established by an opinion. Whether or not someone is intoxicated is nothing more than an opinion, even when there are breath or blood test results. The second reason is the reliance on scientific evidence. Where a test is done, that is used to try and establish guilt. Other than blood tests though, the tests are not 100% accurate - breath tests rely on a series of assumptions that may or may not apply to the individual. In addition, there are a now a number of other tests whose reliability is questionable. What that all means is that you need a lawyer who understands those things, and can properly evaluate your case.

No matter county you are in, make sure you find a lawyer you can trust before you go into court.

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