It’s a busy week over here, so blogging has been light. Here are some things we’d probably have written about if we’d had more time:

Lester Johnson, the private investigator whose work helped clear David Lozano of attempted capitol murder charges after a shootout with APD, was honored at the Texas Association of Licensed Investigators convention this week. Interestingly, in the Statesman article’s comments section, Johnson continues to call out APD and the officer who filed an – ahem – unreliable report.

If you’re not totally clear on the backstory on Sharon Keller and her trial, there’s a good primer on it at the StandDown Texas Project. The veeeeery brief version is that Keller, the chief justice of Texas’ highest criminal court, is on trial for judicial misconduct after responding to an attorney whose computer problems were causing him to run a few minutes late while filing an appeal to stay an execution with the words, “We close at five.” He arrived at 5:20, the court refused to accept is filing, and his mentally-handicapped client was executed at 8:23 that evening.

Grits For Breakfast has another good post up – it’s like this is a trend or something – this time on the subject of DWI prevention via public transit and zoning for neighborhood bars. Expect some expanded commentary on this topic in this space coming soon.

The Statesman has an article about thousands of parolees who’ve been classified as sex offenders despite having never been convicted of a sex crime.

Gamso: For The Defense, which is quickly becoming one of my favorite legal blogs, has a smart primer on exactly what different types of pleas mean. It’s a really useful post for non-attorneys like myself, especially, who couldn’t understand that someone who pleads “not guilty” even though they know they did it wasn’t lying.

Houston defense attorney Paul Kennedy has better news for people who were outraged reading about Sharon Keller (which maybe should be everybody) – the Fifth Circuit Court of Appeals decided to allow an appeal that was filed a day late. The attorney in question blamed the problem on the county’s broken fax machine. Curiously, it appears their fax machine is usually broken when this court-appointed attorney – who takes on 355 felony appointments a year – tries to file appeals, and it usually fixes itself the next day.

Labels: abuse of power, APD, crime prevention, dwi, grits for breakfast, pleas, sex offender registration

posted by Dan   permalink   0 Comments

Austin attorney and former bar association president Mina Brees passed away this weekend. The article touches on some of the controversy surrounding her, but regardless of that, our condolences to her family.

GamsoForTheDefense has a post about a 60-something year old man who's been living in his house for years who, oops, had his address put on the sex offender notification postcards by mistake.

GritsForBreakfast links to a Houston Chronicle op-ed about jail overcrowding. Seriously smart stuff.

Another GritsForBreakfast piece about bait cars, which we've talked about on the blog previously. He makes the cogent point that, if it takes weeks for someone to break into a car WITH THE KEYS INSIDE OF IT AND THE WINDOWS DOWN, the police probably don't need to be so concerned about that neighborhood.

The StandDown Texas Project has a great piece about mental illness and the juvenile justice system here.

And finally, there's a good one in the NYTimes from yesterday by Barbara Ehrenreich about whether or not poverty's become a crime.

Labels: bait cars, grits for breakfast, juveniles, linkdump, sex offender registration

posted by Dan   permalink   0 Comments

Imagine being told that you must register as a sex offender for life for something that is not a even a crime in Texas, let alone a registerable offense. Well, that is exactly what happened to a client of mine when he moved from out-of-state to Texas to live near his mother. When I consulted with this young man I thought surely this is a beaurocratic mix-up with Texas Department of Public Safety that can be resolved with a few phone calls right? Wrong. What ensued was a series of Kafka-esque conversations with DPS employees, culminating in a year of litigation after we had to sue DPS to have our client removed from the sex offender registry.

The situation all started when my client was convicted of a misdemeanor in his home state for having consensual sex with his seventeen year old girlfriend when he was twenty-one (the longer back story was that the girlfriend's father was upset so he called the cops to report this "crime"). Unlike Texas, where the age of consent is seventeen, in my client's homestate, the age of consent was eighteen. When he moved to Texas, however, authorities told him that because his "offense" was "substantially similar" (more on that in a second) to the Texas offense of Sexual Assault of a Child, he would have to register as a sex offender for life. Despite the fact that courts have held that sex offender registration is a "collateral consequence," and "non-punitive", having to register as a sex offender is as close as you can get to a lifetime sentence if you ask me.

The legal basis DPS was relying on to make my client register was a provision under Article 62.003 of the Code of Criminal Procedure which allows DPS to make a determination whether an out-of-state offense is "substantially similar" to an offense here in Texas. If they say yes, then you will be forced, with threat of prosecution for the third-degree felony of failure to register as a sex offender, for the rest of your life. Thankfully, 62.003 also contains a provision that allows a person to appeal this determination by DPS. As I mentioned, this is exactly what we had to do in this case.

The result? The Court thankfully sided with us and found that my client's previous offense was not "substantially similar" to any offense in Texas (imagine that, something that is not a crime in Texas is not "substantially similar" to a crime in Texas). Moreover, the Court ordered DPS to immediately remove my client from the sex offender registry and to contact all agencies that they have previously disseminated this information to.

Interestingly, in some logistical discussions with DPS post-hearing, I was told that this was the first case ever brought successfully in Texas under 62.003. What this tells me anecdotally is that my client can't be the only one in this situation. If I had to guess, I would suspect that there must be hundreds, if not thousands, of people in Texas who are currently on the sex offender registry that should not be.

Labels: dps, public perception, sex offender registration

posted by Kristin Etter   permalink   0 Comments

I am still trying to recover after learning that Governor Perry vetoed some of the only good criminal justice bills that made it through the legislative gauntlet this session (after hundreds of bills died in the House due to the controversy surrounding voter ID). Few, if any, lawmakers voted against the bills that Perry killed and it is beyond frustrating that one person has this much power: I echo the sentiments of Senator Wentworth's vent:

"There's no check on the governor's power to veto bills that have been through an entire process," said Sen. Jeff Wentworth, a Republican from San Antonio who represents part of southern Travis County. "When senators and representatives from all 254 counties overwhelmingly — in some instances, nearly unanimously — pass legislation that's been through a really tortuous path to get to his desk, for the governor to veto it seems a bit unusual," Wentworth said.

So much for the democratic process.

The bills I am most upset about are the expunction bill and the sex offender de-registration bill.

The expunction bill would have made it easier to for those who have had their cases dismissed, or were arrested but were not charged with a crime, to expunge their records. This would have been an amazing opportunity for people who have had their cases dismissed (or not filed!) to move on with their lives without having a criminal record following them around.

Texas Criminal Defense Lawyers Association, along with many other groups, proposed the change because current law imposes lengthy time limitations (and in some case, no time limitations) on being able to file for an expunction after a case has been dismissed. For example, I have two clients that were falsely accused of sexual assault that are unable to have their records expunged under current law because there is no statute of limitations for that offense. Sorry, looks like those false sexual assault charges are going to have to follow two innocent men around at least two more years until next session! And sorry to the thousands of innocent Texans who are going to continue to be harmed with a criminal record that will make it even harder for them in these tough economic times to find jobs, housing, etc.

And Governor Perry's official veto statement as to why he vetoed a bill that had bi-partisan support and passed unanimously out of the House and Senate is nonsensical: "Expunction statutes should not be used as a means of discovery or as a means to force a prosecutor to rush to file formal charges prematurely." What??? Expunction statutes have never and would never be used as a means of discovery - what we want when we are seeking to expunge records is a destruction of those records, not a request to get offense reports. In addition, prosecutors must only have probable cause to file formal charges against someone - and every defense attorney knows how difficult a time a prosecutor has persuading a grand jury on that!

The sex offender de-registration bill was a very narrowly tailored bill that would have offered some relief to young "offenders" who could petition the court for an exemption from life-time sex offender registration for consensual sexual activities if they were within four years of the "victim." Under current law, a 17 1/2-year old who has consensual sex with his 14-year old girlfriend (or a 19 year old with a 15 year old or a 20 year old with a 16 year old) is guilty of sexual assault. That person, if convicted, has to register as a sex offender for life just the same as someone who commits rape or makes child pornography.

What we are talking about here under this bill would have been to allow those teenagers in "Romeo and Juilet" situations to petition the court (and this would have been permissive - not mandatory) to excuse them from a lifetime of sex offender registration for consensual sex as long as they were within four years of the "victim". (And as long as the "victim" was 14 or older.)

And Perry's reason for the veto: "I believe the bill fails to adequately protect young victims." First, the "young victims" Perry refers to are the teenagers who had consensual sex with partners four years older than they were - how does not making those "offenders" register for life in the same way that dangerous predators do "fail to adequately protect" them? Got me. And more importantly, what about the "young victims" out there that will be harmed because our limited public safety resources will be diverted and wasted on monitoring thousands of people on the sex offender registry that pose absolutely no public safety threat? (Not to mention those "young victims" - the "offenders" - who now have no relief from a life-time of living publicly as a sex offender.)

You can probably guess that I am not normally a huge Republican backer, but here's to Kay Bailey Hutchison (or really, anyone but Perry... ANYONE - Kinky Friedman? Leslie Cochrane? Kermit the Frog?) for 2010.

(Flickr images via bludgeoner86, d. jones photo, stuck in customs, faster panda kill kill, lovebrkthru)

Labels: expunctions, governor perry, kay bailey hutchison, kinky friedman, leslie cochrane, politics, sex offender registration, texas gubernatorial election 2010, texas legislature, texas republican primary

posted by Kristin Etter   permalink   2 Comments