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

Thanks to Scott Benson at Grits for Breakfast for letting us know about the decision holding the head of the Texas Parole Board - Rissie Owens - personally liable for violating an inmates rights. The case involved an inmate who was serving time for a non-sexual offense. As the parole board is fond of doing, they looked through his record and decided he was a sex offender, and imposed sex offender conditions of parole. They did so without a hearing, and without letting him review the evidence they used to  make that decision.

The fact that the board violated his rights wouldn't be enough to impose personal liability though. The problem was that the same judge - Sam Sparks - had previously held (twice), that such hearing were necessary, and ordered the board to provide them. Owens defied those orders, apparently on the advice of her lawyer. Few people have the lack of sense to tell a federal judge to F'off, but she and her legal counsel did. They shouldn't be surprised that the judge didn't appreciate it.

Imposing personal liability on a public official is extremely rare. It's not enough to show they violated they law - you usually have to show something more. It shouldn't be that way though. The doctrine of immunity was meant to protect public officials from frivolous suits that were based on nothing more than policy disagreements, or errors in judgment. It shouldn't protect from them from knowingly violating the law. If everyone else is accountable, why shouldnt they be?

I wonder why the lawyer wasn't sanctioned - admittedly he told his client to ignore the judge. He's not the first lawyer to disagree with a judge's decision; for many of us its an almost daily occurrence. There is a remedy though - which is the appellate system. I assume they have appealed those decisions; if they worried about the impact on other cases they could have tried to get an order putting everything on hold. In other words, there are things they could do short of defying the judge.

What happens is the parole board appeals the decisions, and they are upheld. Are they going to ignore that also?

The problem with immunity is that can create an attitude of arrogance and absolute power. Some Officials equate immunity with wisdom - they lose sight of the fact that they aren't being protected because they always right. Take the wrong type of person, and its easy to imagine the abuses that can follow. It's not a new thought - we have long been told that "absolute power corrupts absolutely". Nowhere is that more apparent than in the criminal justice system.

Any time you talk about crime, people are willing to look the other way. After, we are talking about criminals right? They deserve what they get. That attitude exists until you or someone in your family is in trouble. Then you wonder why you are being treated so unfairly. Don't you know Ms. Owens expects a full hearing before the judge imposes sanctions on her. The same type of hearing she and the board are routinely denying inmates.

Earlier this week we saw an inmate - Richard Miles - released after serving 14 years for a murder he probably didn't commit. He was released because the police didn't disclose evidence that someone else claimed to have committed the offense. Prosecutors have a duty to disclose favorable evidence, and we have recently seen a number of case where they failed to do so. While that can be the subject of separate post, there are seldom consequences to failing to disclose evidence.  A court can find the evidence wasn't material (i.e. important) and uphold the conviction. In short, there are seldom consequences. Would the obligation to disclose evidence be taken more seriously if there were real consequences to not doing so?

Whether or not the award is upheld, it serves a purpose. There are limits, even on public officials. May if liability was imposed more often they would think twice before taken actions they know are either unlawful or at least questionable.

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The Supreme Court decision yesterday in Kansas v. Ventris was not a shock. The Court held that the prosecution could use a statement obtained in violation of the right to counsel to impeach a defendant. The State had placed an informant in the cell with Ventris and told him to listen up. Eventually, Ventris made an admission that he killed the victims. At trial he testified differently, and the Sate was allowed to use the admission he made to the informant.

Kansas conceded that the admission was obtained in violation of the the right to counsel, and therefore could not be used in the case in chief. However, they successfully argued that it could be used to impeach him. After, all he shouldn't be allowed to get up on the stand and get away with perjury should he?

The initial problem I see with that argument is that assumes the statement the informant will testify to is truthful. A jail cell is not exactly the place where people bare their souls. There is lot of bragging and self-promotion, mostly in the interest of self-preservation. Perhaps more importantly, informants are not pillars of the community known for their honesty. They don't get anything out of saying someone denied committing the offense; they only get a benefit if they tell the police something useful to the investigation. Needless to say, you can't believe everything they say.

There is a more fundamental problem with this holding. When a statement is obtained in this manner the police are deliberately choosing to violate the law. They know it's unlawful, and they do it anyway. Why should courts reward that conduct. When anyone else chooses to do something unlawful, they get prosecuted. The State gets a free pass, and obtains a benefit - maybe not the benefit they really want, but  a benefit nonetheless. It's simply one more example of the police getting a "pass".

Justice Stevens and Justice Ginsburg were the only two who had a problem with this. In his dissent, Justice Stevens said:

Today’s decision is lamentable not only because of its flawed underpinnings, but also because it is another occasion in which the Court has privileged the prosecution at the expense of the Constitution. Permitting the State to cut corners in criminal proceedings taxes the legitimacy of the entire criminal process....Although the Court may not be concerned with the use of ill-gotten evidence in derogation of the right to counsel, I remain convinced that such shabby tactics are intolerablein all cases. I respectfully dissent.

That's a quote worth saving.

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Several people have already commented on the  story about Dallas police office Robert Powell, who wasvplaced on administrative leave for his conduct in stopping Houston Texas running back Ryan Moats. Moats was on the way to take his wife and other relatives to see his mother in law who was dying at a Plano hospital. Powell pursued Moats until he stopped in the hospital parking lot. While his clearly upset ran into the hospital, Moats proceeded to harass Moats for approximately 15 minutes. He has now apologized for his conduct.

The video of this stop has been posted on you tube and can be found here.  The question I have is what factor what race played in this stop and Powell's subsequent actions. This was in Plano, a relatively affluent suburb of Dallas, and Moats was a young black man driving a nice car. I wonder if a 50 something white male (like me) would have been treated the same. I don't really think so.

Granted, Moats could have behaved differently. But he was trying to get to see his mother-in-law, and was probably already upset - his wife certainly was. It's not surprising he just wanted to get his ticket and get into the hospital - which he says several times. (by the way, his mother in law died) He was in the hospital parking lot, and its clear they were there for a reason. You have to believe Powell wanted to something more than issue a ticket - he even pulled his gun during the stop. Watch the video, and form your own opinion.

I also think there was another factor at play here. Traffic stops are often nothing more than an opportunity to look for evidence. Yes, race is a factor in this also; the statistics are clear that black driver are more likely to be asked for consent to search their vehicle. Many times, they are looking for evidence of something more than the traffic violation; are you nervous, don't have a story that makes sense, smell of alcohol? If they can't find a reason, then they ask if you mind if they look in the car. It happens every day, in a high percentage of stops. My bet is that Powell didn't think he was going just write a ticket and leave; he could have done that and brought it to him inside the hospital. He thought he was going to be taking him to jail, and made that threat several times during the stop.

People violate traffic laws every day, and deserve tickets. They don't deserve to be harassed, and subjected to a full blown investigation. Sure, there are reasons to do that sometimes. But that is the exception, and not the norm. Unfortunately, it is reversed in many places. This was an especially egregious cases, and we heard about. I'm willing to be there a lot more like it we never hear about. The problem is the underlying attitudes and perceptions that officers take into the stop.

It's not too surprising that no one has tried to defend Powell's actions, and the response from his employer was immediate. Dallas police chief  David said he was emabarrased and humiliated and “It’s hard to find the right word and still be professional in my role as the police chief". Needless to say,his future doesn't look to bright. I would hope this be a lesson, but I doubt it will be. Most will say I would never do that. Maybe that wouldn't, but as long as your motivation is something other than issuing a ticket, the possibility is always there.

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