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To Kill a Mockingbird and Posthumous Pardons -

Friday, July 10, 2009

Earlier this week, I was talking with Kristin about To Kill a Mockingbird. (It recently played at the Paramount Theatre's Summer Film Series.) I remarked to her that every time I read the book or watch the movie, I find myself truly hoping and thinking that maybe this time Atticus Finch will win the trial and Tom Robinson will go free, even though I already know the ending.


I then pondered out loud whether Finch and Robinson would prevail in this day and age in our home state. Have we made that much progress? Somehow our conversation wandered into a discussion about Timothy Cole, who died in prison after being wrongly convicted of raping a Texas Tech student, and was later exonerated by Judge Charlie Baird after DNA testing proved that he was not the assailant.

Today I read in the Fort Worth Star-Telegram that the Texas Legislative Council issued a report showing that the Governor has the power to issue poshumous pardons and should do so for Mr. Cole.

Governor Perry has previously stated that an old AG's ruling dictates that in order to issue a posthumous pardon, he must first get authority from Texans through a constitutional amendment. This report now gives him the authority to do so without waiting for the passage of an amendment. As pointed out in an entry on Grits for Breakfast, the worst that could happen is that the courts could later say "no." No one with any standing to sue has threatened to do so, and I cannot dream up any reason for anyone to do so.

While unfortunately this will never bring Mr. Cole back to his family, it is Texas's chance to symbolically change the ending to To Kill a Mockingbird. Sign the pardon, Governor Perry!

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posted by Kristi Couvillon   permalink   1 Comments

The "Seinfeld Session" -

Friday, July 10, 2009

The 81st Texas Legislative Session was so unproductive that it has been dubbed by many as "the Seinfeld Session" - the session about nothing. However, just because there was little accomplished and taxpayers' money went largely down the drain does not mean that there was no damage.

Unfortunately, even in a Seinfeld Session, we still can't escape the insatiable legislative urge to rack up a few penalty enhancements and create a few new crimes. And since ignorance of the law excuses no one, I thought I would post the criminal justice highlights of the 2009 Legislative session:

The Good

SB 839: Abolishes Life Without Parole for Juveniles
Amends § 12.31, Penal Code, Capital Felony, to provide that a juvenile convicted of a capital felony that was certified as an adult pursuant to § 54.02, Family Code, will be sentenced to life, not life without parole.

Amends § 508.145, Government Code, Eligibility for Release on Parole; Computation of Parole Eligibility Date, to provide that a juvenile convicted of a capital felony that was certified as an adult pursuant to § 54.02 is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 40 calendar years.

SB 1940: Authorizes Pretrial Diversion Program for Veterans
Adds Chapter 617, to Subtitle E, Title 7, Health and Safety Code, Veterans Court Program Defined; Procedures for Certain Defendants, to provide the commissioners court the authority to establish a veterans deferred prosecution program whereby if a veteran successfully completes a veterans court program, the court shall dismiss the case.

SB 1681: Requires Corroboration of a Jailhouse Informant

Adds Article 38.075, Code of Criminal Procedure, Corroboration of Certain Testimony Required, to require corroboration before a person can be convicted on the testimony of a jailhouse informant. Provides that corroboration is not sufficient if it only shows that the offense was committed.

HB 1736: Increases Payments and Services to Wrongfully Imprisoned
Adds § 103.052, Civil Practice and Remedies Code, Lump-Sum Compensation, to allow lump-sum compensation of $80,000 per each year of wrongful imprisonment and $25,000 per each year served on parole or as a registered sex offender.

HB 2730: Requires DPS To Waive Surcharges for Indigent

Amends § 708.158, Transportation Code, Indigent Status and Reduction of Surcharges, to state that DPS shall waive all driver’s license surcharges for a person who is indigent.

  • A person may submit the following to establish indigency: most recent federal income tax return or wages reflecting the person’s household income does not exceed 125 percent of the federal poverty guidelines or documentation that the person is receiving governmental assistance.

The Bad

SB 328: Expands Police Power for Mandatory Warrantless Blood Tests

Amends § 724.017, Transportation Code, Blood Specimen, to expand mandatory warrantless blood draws if a person is arrested for an offense under Chapter 49 of the Penal Code involving the operation of a motor vehicle or watercraft and the person refuses the officer’s request to submit to the taking of the specimen voluntarily and:

  • an individual other than the person has suffered bodily injury and was transported to a hospital or other medical facility for medical treatment;

  • person is under arrest for DWI with child passenger under 15;

  • the person has been previously convicted of DWI two or more times; or

  • the person has been previously convicted of DWI with child passenger under 15, intoxication assault, or intoxication manslaughter;

HB 2086: Creates New First Degree Felony Crime of Directing Activities of Criminal Street Gangs and Creates Definition for Gang-Free Zone and Provides Penalty Enhancements

Adds § 71.023, Penal Code, Directing Activities of Certain Gangs, to create the new crime of directing activities of certain criminal street gangs which is a first degree felony.

Adds § 71.028, Penal Code, Gang-Free Zones, to establish gang-free zones and to increase penalty category to the next higher category (except for first-degree felonies) if it is shown that the actor is 17 years or older and commits a crime in a gang-free zone; specifically, if the offense was committed:

  • Within 1000 feet of any school, higher education institution, youth center, or playground; or

  • Within 300 feet of any shopping mall, movie theater, public swimming pool, video arcade; or

  • On a school bus

HB 2240: Creates New Offense of Continual Violence Against the Family
Adds § 25.11, Penal Code, Continuous Violence Against the Family, to create a new offense of continual violence against the family, a third degree felony, if during a 12 month period, a person commits family violence two or more times.

The Ugly

HB 2846: Increases Age of Child Victims for Outcry Statement to 14 and Expands Outcry Statements to Include Acts Other Than the Alleged Offense that Were Committed Against the Child Victim or Other Victim Under 14

Amends § 1, Article 38.072, Code of Criminal Procedure, Hearsay Statement of Child Abuse Victim, to increase the age of a child victim from 12 to 14 for purposes of admitting an outcry statement and to allow outcry statements for criminal attempt of certain offenses.
Amends §2, Article 38.072, Code of Criminal Procedure, Hearsay Statement of Child Abuse Victim, to allow outcry statement of child victim under 14 concerning other crimes, wrongs, or acts other than the alleged offense and allegedly committed by the defendant against the victim or another child younger than 14.

SB 727: Requires Judges to Order DNA Sample Collection for Defendants Granted Probation for a Felony and Juveniles Adjudicated of 3g Offenses

Amends Article 102.020, Code of Criminal Procedure, Costs on Conviction for Offenses Requiring DNA Testing, to require a person placed on community supervision to pay $34 if DNA sample required.

Adds § 54.0409, Family Code, DNA Sample Required on Certain Felony Adjudications, to require the court to, on adjudication of a 3g felony or felony involving a deadly weapon, collect DNA, as a condition of probation, from a juvenile.
Adds Subsection J, § 11, Article 42.12, Code of Criminal Procedure, Community Supervision, to require a judge granting probation to a defendant convicted of a felony to require defendant to provide a DNA sample.

Click here for our full 2009 Legislative Summary of new criminal justice laws.

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posted by Kristin Etter   permalink   0 Comments

A little bit of opium on the gums -

Wednesday, July 08, 2009

More than a decade ago, one of my dearest friends decided to take her two and a half year old son to Sea World in San Antonio, which is where my parents live. She also had her second-born son with her, who was only six or so months old. My friend and I went to high school together and so my parents know her very well and, since I was spending the weekend with my parents, she and the boys came over for dinner after Sea World.


While at my parents' home, the baby started crying - a lot. We were all trying different things to soothe him and nothing seemed to work. This is when my Dad, who did all the bread-winning and very little of the child-rearing in our family, suggested that what the baby needed to calm down was just a little bit of opium applied to his gums. This sent me and my friend into hysterical laughter - both the advice and the source of it seemed so preposterously funny.

I couldn't help remembering this story after reading a recent Wall Street Journal article about the increasingly effective use of cultural defenses. In short, the idea is that someone's culture can be used to defend them against allegations they have committed a crime:

In 2004, Yer Vang, a member of the Hmong ethnic group who emigrated to the U.S. from Laos, was charged with opium trafficking after police found more than 300 grams of the substance in his Rock Hill, S.C., home. His lawyer presented evidence that that amount of opium was less than an average Hmong tribesman from his country smokes in a year.

"It's their version of Advil. They've been using this for 1,000 years," says Mr. Vang's lawyer, Chris Wellborn, argued.It worked. "An all-white, predominantly Republican, South Carolina jury found him not guilty," Mr. Wellborn said.

My parents were both born and raised in India, and while they were growing up, opium was used regularly as a substance that soothed and killed pain; or, at least, this is what my Dad told us after we had calmed down from our laughing fit. And now that my husband and I have kids and I have clenched my teeth through many a 2-year old temper tantrum, I'm beginning to wonder if he might have been on to something.

Detractors of cultural defenses posit that immigrants shouldn't get a break just because they were raised in a different culture, with different norms. To do so, they suggest, would be unfair to other citizens raised in this culture who are expected to abide by the law, no exceptions.

I don't get that. Part of the job of a prosecutor, it seems, is to figure out if a person deserves a second chance; for example, probation versus jail time, or a dismissal versus a conviction that stays on a person's criminal record forever. And part of figuring that out is determining if they are dealing with a person who, while having done something criminal, is not really a criminal. Maybe they did something stupid because of their age. Or maybe they did something totally out of character because they were very intoxicated or under an enormous amount of stress. Maybe they have an undiagnosed mental health issue. Maybe they made on honest mistake. Or maybe they just didn't get it or get the seriousness of it--because of their cultural background.

Of course, prosecutors have to consider whether the alleged crime was violent, whether there was a victim, or whether others were put in danger because of the defendant's behavior. Our practice is full of clients who broke the law, but have no criminal records, did not hurt anyone in the process, and have a number of mitigating factors that should be considered before a criminal conviction is put on their record, making it that much more difficult for them to get a job, obtain housing, or otherwise remain or become contributing members of our community.

And it's our job as defense attorneys to make sure we put it all together for the prosecutor--to show them why a particular client deserves a second chance. We also need to educate that client along the way, and then show the prosecutor how the client has learned from the experience. It's our job to convince the prosecutor that our client won't make the same mistake again.


(image via Kerry Kate's flickr)

posted by Raman Gill   permalink   0 Comments

Picking the Low-Hanging Fruit -

Wednesday, July 08, 2009

Here’s a fairly ridiculous example of an ill-conceived plan:

TUCSON, Ariz. — A plan by the Pima County Sheriff's Department that would have stationed deputies at fast-food joints to sniff out drunken drivers appears to have fallen flat.

The department had hoped to target drunken driving by putting undercover deputies inside 24-hour fast-food restaurants to spot impaired drivers placing their orders. If deputies spotted someone with classic symptoms of impairment, they were to call a uniformed deputy stationed outside to pull the driver over.

But sheriff's Lt. Karl Woolridge says the department asked various fast-food chains if they'd agree to be a part of the program, but all of them declined.

Asking fast food drive-thru operators if they’d be willing to let the police hang out by the window in the middle of the night to arrest only the customers who appear to be under the influence of some sort of substance is like asking head shop owners if they’d be willing to let the police in to bust only the customers who aren’t actually going to observe the tobacco use only signs posted throughout the place. If they did it, they’d have no customers at all.

Anyway, what’s really silly about this is that it’s not the sort of thing that’ll have any impact on drunk driving. It’ll just have an impact on what drunk drivers eat. The odds of someone saying, “I know I really want a Carl’s Jr. burger at two-thirty this morning, I’d better not drink tonight” are pretty small. All a program like this would really accomplish would be to tell drunk drivers that the odds of getting stopped for DWI have just shrunk if they steer clear of the local Taco Bell. Thankfully, old-fashioned economics from the restaurateurs (if you can call someone who runs an A&W that) nixed this one.

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posted by Dan   permalink   0 Comments

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