HB 3481 - Friday, June 19, 2009  Update 6-22-09: Sadly, HB 3481 was vetoed Friday by Governor Perry. Texas expunction law will continue to be outlined as it is here. The original post is below.
There’s a common misconception out there that once a person's case is dismissed, it'll no longer be on their record. Unfortunately, it's a little more complicated than that.
People who've been wrongfully accused, or who've have had their charges dismissed as part of a plea agreement, or who've been acquitted at trial - unless they take an active step to have their records expunged, that arrest will remain on their record for anyone to see for the rest of their life.
Moreover, unless they expunge their record, they must always answer "yes" to the question "have you ever been arrested" - which appears on job applications, bank forms, school and rental applications, and more. There are a number of companies that do nothing but collect and disseminate criminal records, and they make a lot of money trying to make sure that the arrest can follow you indefinitely.
That's where an expunction comes in. The statute in Texas has always allowed those who meet certain criteria to receive an expunction - in which the court destroys all record of the arrest and which allows the client to legally answer the question "have you ever been arrested" with a "no" - but the state has also imposed tight restrictions and required long time limits for elibility.
This is a huge burden for those needing to move on with their lives. I'm one of the lobbyists for Texas Criminal Defense Lawyers Association, along with S&G's David Gonzalez, as well as Keith Hampton and Allen Place, and we've been working during the 81st Legislative Session to help alleviate that burden. The bill we helped to draft, HB 3481, passed the House and Senate and was sent to Governor Perry on June 3. HB 3481 eliminates the current waiting period - in most misdemeanor cases two years, and in most felonies three, with some never being eligible - and replaces it with much more reasonable time periods. For unfiled misdemeanors and unfiled or dismissed felonies, a person will be eligible six months after an arrest. For dismissed misdemeanors, a person will be eligible immediately. The bill also eliminates the requirement that the person in question have no other conviction within five years preceding the date of arrest.
We're really optimistic that this will make a big difference in people's lives. Now we're just waiting on Governor Perry. If all goes well, this will go to law and be effective immediately.
(image via EssG's flickr) Labels: expunctions, lobbying, texas legislature
posted by Kristin Etter
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Busted! in Austin - New Weekly Rag - Friday, June 19, 2009 
Kristi says: Last week, Dan came back to the office with the latest copy of Busted! in Austin - a weekly publication full of pictures of mug shots of people recently arrested. I've seen this rag at various gas stations but haven't wanted to pay $1 to anyone who was profiting off of the misfortunes of others. (At first, I thought it was free, given its shoddy appearance, but then noticed its cheeky warning, "It's not free, unless you want to be in the next issue!") A couple of my friends have asked me if it is legal for this paper to publish all these mugshots. Unfortunately, it is legal as mug shots are public records. Mr. Ward has included a disclaimer in his little project: "All suspects appearing in Busted! In Austin are innocent until proven guilty in a court of law. All information and photos presented in Busted! In Austin are obtained from public documents and other public sources including police affidavits and court documents." You can bet, however, that he won't later publish the names and photos of folks in the paper that were later acquitted at trial or had their charges dismissed. Jordan Smith of the Austin Chronicle reports that its founder, J. Martin Ward "considers the project something of a social equalizer – the face of crime, he says, isn't homogeneous. " I find that interesting, as my first thought while flipping through the pages was, "Why are they only featuring the poor and minorities?" I've seen several mug shots, both as a prosecutor and defense attorney, and not everyone looks awful like the majority of ones in here. Busted! In Austin reminds me of COPS - I've always thought that show was a big F-You to the lower class. You never see white-collar criminals getting arrested on there and they always seem to feature police patrolling in impoverished areas. What about the rich kids who get arrested in Westlake? Will we be seeing their mugshots? And, if Mr. Ward wants to be a "social equalizer," his time would be better volunteering with Austin's young people living in poverty, educating them about both the law and other matters.
 Dan says: I had a few thoughts on Busted!, too, but I didn't really want to give a rag like this two entries on the blog, so we've got our first-ever joint post. In the issue that I picked up, there's a letter from someone who makes a lot of the same points that Kristi made up there, and I thought that Ward's response to it stank of the sort of lazy, cowardly nonsense that deserved a good calling out: Busted! In Austin always values the voice of dissent. Busted! In Austin is proud to exercise our 1st amendment rights in reporting what we feel is newsworthy. A good way to spot when someone is trying to play the martyr when they're being called out on their reprehensible behavior is when they try to hide their tacky behavior behind the Bill of Rights. Yes, you've got the right to publish this crap. The criticism isn't that you're breaking the law, it's that you're being an a**hole. The dimestore Larry Flynt pose in response to people saying, "hey, what you're doing is shameful and mean-spirited" is disingenuous. No one's trying to silence you. They're just telling you that you're a crappy person. That's our First Amendment right. It may seem like exploitation from your point of view, but from our point of view, we are reporting crime we think is newsworthy, evidenced by the paper's popularity.  The paper's alleged popularity (you'll notice that issue 6, which is the one I picked up, has exactly one paid ad) isn't the arbiter of newsworthiness, and I suspect that Ward knows this, too. If anything that people were willing to plunk a buck down on the counter for at a gas station was automatically the news, then Batboy would be our firm’s newest client. “I’m validated by people’s lower instincts!” isn’t exactly a convincing defense. He should have just typed, "Screw you, I wanna make money", and left it at that. This act is embarrassing. Furthermore, the "we are reporting crime" line betrays the fact that he doesn't know what he's talking about. He's not reporting crime. He's reporting arrests. There's a difference. I reviewed the DWI arrest tape of a client the other day who had her charges dismissed before she was even out of jail. There was no probable cause and no reason to believe that she was driving while intoxicated - the judge grasped this fact very quickly and dismissed the case about as soon as it was brought to his attention. So no crime was committed, but her picture would still be eligible to run in Busted!, free of all context and devoid of any facts, except maybe if her hair looked good or not in the photo. Which really busts a hole in the lame “newsworthy” argument Ward hides behind. Look at the paper, which groups people as "Busted Beauties", "Heavenly Hair", and "Old Farts". If Ward really wants to pretend that he's got the moral high ground of offering news to the community, I'd sure love to hear him explain exactly how worthy a goal it is to inform Austinites that some pretty girls or some dudes with long beards got arrested this week. Otherwise, geez, it just looks like you're full of crap. What I don’t understand is why he cares about pretending like he’s doing anything other than cashing in by making fun of vulnerable people going through the worst time of their lives. Who’s he trying to win an argument with?
If you're going to be a shameful, eploitative scumbag, Ward, at least be an honest one.
Labels: exploitation, fake journalism, mug shots, presumption of innocence, tacky
posted by Kristi Couvillon
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The Iron Rule: A Young Social Workers Dilemma - Thursday, June 18, 2009 (By Athan Schindler, S&G staff social worker)
 When I was in grad school, a professor (Dr. Streeter to be exact) said something to our class that has resonated with me ever since. He said, “There’s an Iron Rule in Social Work. It’s iron because it’s not flexible or bendable. You should never work harder than your client. You will not do your client any good by doing everything for him.”
I have bought into this philosophy. For me, it’s the whole “teaching someone to fish vs. giving them a fish” argument. As a Social Worker, I have worked very hard to establish my professional boundaries - to draw the line in the sand that I will not cross. I take great pride in integrity and sticking to my values. Up to this point, I have not broken this rule. Or, at least I’ve tried really hard not to. One problem, though. I’m a Social Worker in a criminal defense law firm. By nature, our clients aren’t always the most responsible people in the world. They don’t always come to appointments- regardless of how many times you remind them. They certainly don’t always follow through with plans and action items. Don’t get me wrong; many do. However, the ones who could usually benefit most from an social worker’s assistance and the ones who usually REALLY need an excellent outcome in their criminal case, do not. I have a true passion for being an agent of change for the people I serve. I really, really want them to achieve success - whatever that means for them. Problematically, I often find myself wanting their success more than they do. OK, ok… I’m exaggerating. Or am I? It certainly feels that way. And, I know I can’t make anyone do something they don’t want to do. My question is: How can I empower my clients to invest their time and energy into their own lives and their own goals to their fullest potential? I’m sure I’m really showing my inexperience as a social worker here, but it will be worth it if I could gain some tools and resources from some seasoned social workers. Labels: social work
posted by Dan
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Police and Tasers in the Street - Wednesday, June 17, 2009  I was at a cookout this weekend, and got dragged into a conversation about Kathryn Winkfein, the 72-year old woman who was tasered twice by Travis County sheriff’s deputy Chris Bieze during a traffic stop. The story’s pretty controversial for a couple reasons: One, it, um, involves a 72 year old woman being shocked by the police. Two, the woman was literally asking for it. You can hear on the video that the words out of her mouth that immediately preceded the tasering were, “go ahead, I dare you.”
So, she didn’t get a lot of sympathy from the cookout crowd. A lot of talk ensued from the gathered 20- and 30-somethings about old people who think that the rules don’t apply to them, and what else was the officer to do, and she shouldn’t have gotten so belligerent. (The video also features a shot of her telling him “Give me the f**king thing and I’ll sign it already”, in reference to the speeding ticket that started the confrontation.) Thing is, none of that is relevant here. What’s relevant is that this isn’t what tasers are for. The police don’t have tasers to teach lessons to people who think that they’re above the law. They don’t have tasers because police officers, when they’re not sure how to handle a situation, need to be able to shock a suspect. They don’t have them to punish people for being belligerent, or even to give people who ask for it what they deserve.  The APD, when introducing tasers a few years ago, hired medical experts Edward Racht and Pat Crocker to assure citizens of the weapons’ safety. They drew their research from two reports, including one by a British doctor named Anthony Bleetman, who was at the time the only independent doctor who had done a peer-reviewed study on the subject. The APD has since widely ignored the key item outlined in the report:
“Police officers are legally and morally required to use the lowest level of force necessary to control a situation and to de-escalate at the earliest opportunity. Use of force options start with good communication skills, then escalate from unarmed physical skills (holds, restraints, strikes), deployment of incapacitant sprays, up to the use of batons. At present, when facing levels of threat that exceed the capacity of an officer deploying a baton, there remains only the use of a firearm. Police agencies have searched for "less lethal" weapons to fill the operational gap between the baton and the gun." Or, as it’s put more succinctly at the conclusion: “The Advanced TASER is to be used only as an alternative to firearms and any outcome measures should be considered in this context.” The medical reports that were used to determine the taser’s safety explicitly state (and are consistent with Amnesty International policy on torture) that the weapons are only to be used when the officer’s only other choice is to shoot the suspect. We can pretty safely assume that Bieze wouldn’t have shot Winkfein if he hadn’t had a taser. So all the rest – whether she was acting like she didn’t have to follow the rules, whether she deserved it, whether she’s responsible for escalating the situation (she is) – all of that is irrelevant. What’s relevant is that the taser was a disproportionate response, and that it was misused. And that’s true in many taser situations, not just this one. It’s true of the don’t tase me, bro kid. The taser wasn’t sold to the public as a cool new way for police to zap suspects. It was sold as a way for them to stop people who would have otherwise been shot. EDIT: Furthermore, APD policy specifically outlaws the use of tasers on a suspect like Ms. Winkfein. From the Austin Police Department Policy On Taser Use document: The TASER will not (emphasis theirs) be utilized under the following circumstances:
a. Against any subject already handcuffed.
b. The suspect is fleeing from officers for a misdemeanor or non-violent offense (emphasis mine), unless the suspect is armed and poses an immediate threat to the officer or another person.
c. Against persons displaying passive resistence (passive resistance means a subject offers no physical resistance to arrest, simply goes limp, or makes no overt act of aggressive behavior)
d. When flammable liquids or gases are pregnant.
e. Against a woman who is obviously pregnant, a child, which by physical stature and size appears to be under the age of 14, a disabled individual, or an elderly individual (emphasis mine), as defined by section 22.04 of the excessive use of force involving the device. Now, the Travis County Sheriff’s Department is a different entity than APD, and I’m not sure that this document applies to them (I’m the non-lawyer in the office – any of the lawyers want to chime in?), but regardless – if APD finds it important to enumerate restrictions against the use of tasers on people involved in misdemeanor offenses and the elderly, then there’s really no reason to believe that it’s totally safe and warranted to taser a 72-year old when the Sheriff’s Department does it. (graffiti image via Lola May’s Flickr stream) Labels: APD, police violence, tasers, Travis County Sheriff's Department
posted by Dan
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Legal Lagniappe - Tuesday, June 16, 2009
We picked up one excellent word — a word worth travelling to New Orleans to get; a nice limber, expressive, handy word — "lagniappe." They pronounce it lanny-yap. It is Spanish — so they said. We discovered it at the head of a column of odds and ends in the Picayune, the first day; heard twenty people use it the second; inquired what it meant the third; adopted it and got facility in swinging it the fourth. It has a restricted meaning, but I think the people spread it out a little when they choose. It is the equivalent of the thirteenth roll in a "baker's dozen." It is something thrown in, gratis, for good measure. -Mark Twain, Life on the Mississippi (1883)
 In Southern Louisiana, one often hears the term "lagniappe" used to describe the small things that make life a little sweeter. This word often comes to my mind when I'm doing a little extra for my clients - this is one of my favorite parts of my job. The opportunity to put personal touches on my law practice at my firm is one for which I am grateful.
Last Friday, for example, I got the news that one of our client's felonies was dismissed. I emailed my client to let him know. I told him that I'd pick up a copy of the dismissal on Monday morning when I was at court and fax it to him. He was thrilled and indicated to me that he couldn't wait to have the dismissal in hand. Normally, our runner would be down there in no time to pick up the dismissal for us, but he was out of town visiting his new niece. As I was wrapping things up for the weekend, I decided to run down to the courthouse myself so that my client could have his dismissal over the weekend.
Everybody takes some satisfaction in being someone that people turn to, and that's a rewarding part of my job. I got a call earlier this week that really upset me - one of my former clients called to tell me that his pit bull had been shot by law enforcement. While I couldn't help him legally, I was able to make a couple of calls to people I know in the community and help him with both legal and veterinary options. My fellow dog lovers out there will be happy to know that the dog is doing much better, and hopefully we'll be getting good news about the legal outcome as well. Labels: dismissal, dogs, lagniappe
posted by Kristi Couvillon
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That’s Why They Call It Money - Monday, June 15, 2009 By David Gonzalez
Harvard Medical School Professor Dr. Atul Gawande was interviewed on NPR’s Marketplace about the rising cost of health care. His recent study – and critique – of the business of health care set his sights on McAllen, Texas, where health care costs are more than $14,000.00 more than anywhere else in the nation. Dr. Gawande had an interesting hypothesis for the three different types of business models for medical practices: [W]hen I think about money as a physician there's three ways you can think about it. One is you just try to ignore it, and hope that your expenses come out OK at the end of the month, and you can pay the secretary, and your malpractice premiums, and the rent on your office. The second way doctors think is, hey, I've got some good money coming in maybe I'll use it to improve the quality of care for my patients. And so they'll hire a nurse practitioner to follow up on the diabetes patients, make sure people are all getting their mammograms like they are supposed to. And then there's a third way you think about the money, which is that you just focus on how do you maximize the revenue. The interview hit close to home. Since the onset of the Great Recession, we’ve had to be more strategic about the choices our Firm makes. For the past ten years we’ve bounced between the First Option & Second Option. We’ve always believed that if we do good work for clients, word will get around and our business will steadily grow in direct proportion to the quality of our legal work. We have consistently re-invested profits back into the Firm, hiring additional lawyers, paralegals, legal assistants, and social workers to improve the quality of our legal services to clients. Working in a profession that is already highly criticized for an unhealthy devotion to money, we imprudently thought we were taking the moral high ground by avoiding the money issue and just sort of let it take care of itself. It turns out that we weren’t taking the moral high ground, we were just taking the easy way out. It may not be hard to calculate overhead expenses, breakeven points, regression analysis, standard deviations, and profit margins for somebody who went to business school and loves numbers. But for somebody who still hasn’t found a good use for trigonometry or Pre-Calculus, it was always easier to jump to the interesting legal issues and ignore the boring business ones for another day. What we realized is that we were jeopardizing the level of care we were providing to our clients. While we used to stay awake at night worrying about our arguments in court the next day, we found ourselves worrying about cash flow and financing. When the recession hit, we realized how little control we had in the professional side of our practice. I have control over the number of times I can practice an oral argument; I don’t have any control when both of our banks stopped extending lines of credit for small businesses. There has been and will always continue to be an uncomfortable relationship between business and professional service. I believe that all of the businesses that focus on profit and revenue will eventually fail because they have no core purpose other than making money. I believe that businesses that focus on providing the best possible product or service to clients will eventually succeed because they are in business for the right reasons. The hard part is maintaining the balance in the middle. (flickr image via daviddmuir) Labels: mcallen, money, the business of law, the recession
posted by Dan
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