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

Williamson Count District Attorney John Bradley may have come up with a solution for all these pesky little innocence claims. Charge them with aggravated perjury for falsely swearing they were guilty when they entered their plea.

Markum Peavey was sentenced to 55 years in 2007 for driving while intoxicated. It is not clear whether or not there was a plea agreement, but Peavey did plead guilty. He also pled guilty to evading arrest, and was sentenced to 25 years for that offense. Peavey then filed an application for writ of habeas corpus; in his writ, he claimed he was innocent. Writs of habeas corpus must be sworn to, so Peavey swore to the statement that he was innocent. Clearly, that was not consistent with his earlier plea of guilty. So not being content with 55 years, and apparently outraged that he would challenge his conviction, Williamson County indicted for aggravated perjury. Earlier this week Peavey was convicted and sentenced to 30 years; that sentence was stacked onto the prior sentence, so Peavey basically now has an 85 year sentence.

Even the most staunch defender of law order might sense some unfairness in this. Other than concerns about decency and fairness, there are also some practical problems with this approach. The first is that just because a defendant pleads guilty doesn't mean he agrees he is guilty.

Long ago the United States Supreme recognized that defendants might who don't believe they are guilty might not want to risk going to trial. Although this can be he subject of a separate post, its basically common sense. Would you rather be innocent and spend 10 years in prison or innocent and spend 50 years in prison. Prosecutors know this, and sometimes make offers to good to be true. So a defendant basically fibs, and admits guilt in return for a favorable outcome.

The Court of Criminal Appeals recognized this a few years ago in DNA cases. Some of the persons who have been exonerated actually plead guilty originally. The court recognized there could be a number of reasons for pleading guilty, and held that would not prevent you from claiming innocence and filing a motion for DNA testing. It's probably worth noting that those motions also have to be sworn to.

Maybe Mr. Bradly has hit on a way to save the state some money.  A defendant is exonerated through DNA evidence, and gets a pardon from the government. The State then comes in and indicts him for aggravated perjury if he plead guilty. If they get a conviction, then does that prevent him from getting his compensation - which was recently raised by the way? Maybe I shouldn't even say that - its just crazy enough that the governor might think its a really good idea.

As a side, if the name John Bradley sounds familiar, it should. That is the new chairman of the Texas Forensic Commission - the chairman who canceled the meeting where Dr. Craig Beyler was going to discuss his report on Cameron Todd Willingham. I'll let you draw your own conclusions.

• Email This
• Print
• Comments (1)
• Trackbacks

The Texas legislature is in session, which generally means an attack on DWI laws. Every session a number of bills are introduced - most of them bad. Fortunately, few ever make it through the process though.

Texas is one of the few states without legislation authorizing roadblocks. That may change - the Senate yesterday passed a bill that would authorize roadblocks in very limited situations. If you are going to have roadblocks, this bill seems like it contains the appropriate limits. For one, it only applies to the 15 most populous counties, which leaves out many cities - like Waco. It also has a number of restrictions. Checkpoints are limited to 4 hours in lenght, and their existence (although not their location) must be publicized. There are also restrictions on where they can be set up. If you are going to have roadblocks, this appears to be as good as a bill as you are going to get; at least from the standpoint of protecting the ordinary citizen.

Another bill moving along is less circumspect. That bill would authorizie the collection of a breath or blood sample, even where the suspect refuses. Bassically, you can be forced to give evidence against yourself. If this bill passes, I wonder why you would even ask anymore. If you do ask, do you have to tell the person that you are going to get a sample even if they refuse?

With all the economic problems we have, you would think there would be better things to spend time on. This session appears to be no different than most though; crime is still a popular topic. Everyone likes to talk about how tough on crime they are. I'm not sure that is as important to voters as it is politicians, but the perception remains. If nothing else, you don't have to address the really important issues.

I'm sure there will be other changes discussed before the session is over. Stay tuned.

• Email This
• Print
• Comments
• Trackbacks

The baseball steroid scandal has reared its again. Yesterday, A-Rod admitted he used steroids when he was with the Texas Rangers. Houston Astros shortstop Miguel Tejeda was also charged with lying to Congress. You can debate the wisdom of pursuing this investigation all you want. Personally, I think we have more important issues to focus on.  However, it does point out something that is not well known about the criminal justice system; when they can't get you for anything else, they can also get you perjury.

Perjury is a favorite tool of prosecutors. Those who remember the S & L mess in the 1980's know this well. There were hundreds of bankers and executives who probably committed all sorts of fraud, and other illegal acts. They weren't convicted of those things though; instead, they were convicted of perjury. Investigators would either get them in front of a grand jury or interview them. When they thought they were lying they would charge them with perjury.

Perjury is also a common threat, especially in criminal prosecutions. When a prosecutor finds out someone is going to testify for a defendant, they gently remind them they can be prosecuted for perjury. The proof is that the witness isn't saying what the State's witnesses are saying. Of course everyone knows that the state's witnesses are also truthful, so if you say something different you are lying.

There is some discretion in the application of any law. Nowhere is that more apparent that in perjury prosecutions. How many times have you seen a prosecution discredited; many times there is no doubt they lied. You seldom see them prosecuted though. With Tejeda, who hasn't lied to Congress? How about the auto executives, and bankers who have been testifying. No one seriously expects those people to ever be charged with an offense. Is that fair? Probably not, but that's the system.

• Email This
• Print
• Comments
• Trackbacks

A grand jury in Kentucky recently indicted a high school for reckless homocide for the death of one of his players from heat stroke. According to various reports, the coach refused to provide players with water. At first blush this appeared to be another attempt to hold someone criminally responsible for what is basically an accident. That may still be the case. However, as more facts come out, I can understand why the prosecutor decided to pursue this.

It appears the coach was forcing players to run until they could no longer do so. That is nothing out of the ordinary, and probably happens at some point everywhere - after all coaches must teach players to learn their limits, which is something you cannot do without being pushed. What is disturbing about this situation though is that before the young man, another player collapsed. When you combine that with the failure to provide water you have a situation that is out of the ordinary. In short, I can see why the prosecutor took action in this case.

I grew up in the day when we didn't about the need for hydration. It is was not something encouraged in my time. Instead of water, salt tablets were common - everyone believed they replaced the salt you were losing through sweat. We now know that is less than a great idea. We also know a lot more about what is necessary to avoid injury, especially heat stroke. This is not the first time something like this has happened, and you have to believe coaches are aware of it. Maybe the coach had a reason for what he did, but it seems to fly against conventional wisdom.

There is no doubt the school could be sued, and may well be. In the past, that has been how these type of issues were resolved. In fact, around the same time the widow of Minnesota Vikings player Korey Stringer settled a suit they had filed against the team. The 11th circuit also issued an opinion in a similar case filed against a school. In a 1983 suit, the court held the coaches were entitled to qualified immunity since the player voluntarily participated in the program. That would seem to effectively defeat any such suit, since almost all such programs are voluntary. I wonder whether the same facts would suuport a criminal prosecution.

Texas has the offense of criminally negligent homocide - the elements are that a person causes the death of another by criminal negligence. There is also an offense of manslaughter, which covers deaths resulting from recklessness. Criminal negilgence exists where a person "is aware of  but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's viewpoint."

So what does that long legal definition mean? Basically, the State must prove he either knew, or should have known that the player would die. Ultimately it will be up to a jury to determine that question. I can see both sides, which usually means it is they type of case that should be resolved by a jury of citizens.

Normally, I'm suspicious any time it appears someone is being charged just because something bad happened. Not every unfortunate occurence is a crime; we have a civil system designed to take care of those things that are simply reckless or negligence. Criminal prosecution should be reserved for the most serious cases; those that are the result of more than simple mistakes in judgement. Until we know all the facts, I don't know where this case comes out in that continuum. No doubt it is a tragic situation; not only for the student and his family, but also the coaches, the other players and the school. Hopefully its not made worse by dragging the coach through a criminal prosecution.

• Email This
• Print
• Comments
• Trackbacks

This comes from Robert Guest at Dallas Criminal Defense Lawyer. A new reality show descended on Odessa, Texas. Apparently they went in response to a case involving Yolanda Madden, after an informant used by the police department testified in Federal Court that he planted evidence on Madden; she was eventually convicted and sentenced to 8 years in prison. Even with that testimony, and both Madden and the informant passing polygraphs, her conviction still stands.

The show decided to set up a sting. They rented a house in Odessa, and placed grow lights on two Christmas trees inside. Apparently the police believed they were growing marijuana, and in less than 24 hours, a search was executed on the house. When the officers arrived, they were greeted by Kopbuster's attorney. Going with the strategy that the best defense is a good offense, they arrested the attorney and took him to jail.  He wasn't released until the media showed up, wanting to know what happened.

According to the story, the police department has refused to release the affidavit for the search warrant. That's not too surprising, since you have to think it is extremely incriminating. If an informant said he had been inside and observed the marijuana, then the affidavit is clearly fabricated. If they relied on some type of thermal imaging, it would be illegal. Since nothing illegal was taking place, it is hard to understand what they could come up with to justify their actions.

What's amazing about this story is how it is way to trap the police. If everything in the story is true, it reflects a systemic problem in the police department. If this did happen, all cases involving informants will be called into question. It doesn't take much imagination to predict the financial consequences to the city.

Some may question the techniques used by the show; the police department is trying to come up with a crime to charge with them, although I can't imagine what it would be. The fact is, dishonest police officers can fabricate information, and there is no way to prove they did so. All they have to do is allege they have information from an informant, who has provided truthful information in the past When they don't have to name the informant, there is no way to verify the information. Traps like this are the only  way to uncover this type of misconduct. In reality it is nothing more than the same type of techniques used by police. They routinely set up "reverse stings", to uncover those willing to engage in criminal behavior. Here it was the police engaging in the illegal behavior.

It will be interesting to watch this story unfold. Both to see what the facts actually turn out to be, and to see how it plays it; both for the Kopbuster's attorney and Yolanda Maden.

I'm interested to know what other people think about this tactic. Post a comment and let me know your thoughts, pro or con.

• Email This
• Print
• Comments
• Trackbacks

Almost everywhere except Texas the offense of driving while intoxicated is referred to as DUI. If you don't believe me, do a search for DWI attorney and then search for DUI attorney and see how many more hits you get.

If a potential client has done some research before coming in, they often ask what's the difference between DUI and DWI. It's a good question because Texas does have an offense of DUI, or driving while under the influence. That offense applies only to minors, and prevents minors from driving whenever they have had anything to drink, even if they are not under the influence. An adult can be "under the influence" and as long as they are not intoxicated, no crime has been committed.

Some people think DUI applies to someone who is under the influence of drugs, but that is not the case. The DWI statute defines intoxication as "the loss of the normal use of a person's mental or physical faculties" by reason of the introduction of alcohol, drugs, or a combination of the two.

Although the laws in most states are fairly similar, there are important distinctions. While the offense of DUI in one state may be the same as DWI in Texas, there may be important differences, especially in terms of penalties. While its helpful to be educated, there is no substitute for a consulting with a lawyer experienced in handling DWI cases in Texas.

This post published by a Waco DUI lawyer

• Email This
• Print
• Comments (1)
• Trackbacks

Both Simple Justice, and Truth in Justice, recently commented on the reversal of a criminally negligent homicide conviction in New York. The 17 year old defendant was on his way home when he lost control over his car while going through a turn. He had 3 friends with him, who all died. The defendant was speeding, and only had a junior license. The Court of Appeals concluded that was not enough to make the conduct criminal.

Sometimes people have a hard time accepting that some actions are not crimes. Criminal statutes are generally designed to punish intentional conduct; you know something is wrong, but you do it anyway. You don't always have to intend the result; for instance, you might get in a fight, and during the fight the other person trips, and hits his head, resulting in serious injury. You may still be guilty of an aggravated assault, if serious bodily injury resulted.

All but a few criminal offenses require a mental state. There are three - intentionally, knowingly and recklessly. Recklessness means you aware of the risk, but ignore it. In the assault example, you know something might happen. You can be reckless, and be just as guilty as if you act intentionally.

Sometimes you don't need a mental state at all.  Intoxication manslaughter is one of those offenses. If you intoxicated, and involved in an accident, you are guilty. The State doesn't have to prove the accident was the result of your drinking, they just have to prove you were legally intoxicated. Sometimes its nothing more than bad luck; both for the defendant, and the other parties.

So why should you be guilty if you don't have the necessary intent? The theory is strict liability - you are responsible for the consequences of your actions, no matter what your intent is. If you drive while intoxicated, you are responsible for whatever happens. Some may think it fair, and some may not.

Not everything has to be crime. We have a civil justice system that is designed to handle disputes. We would be better off if we let the civil justice system handle some of those disputes, and not make everything a crime. After all, we have more than enough people in jail already.

• Email This
• Print
• Comments
• Trackbacks