Austin’s ban on driving while texting went into effect on New Year’s Day. I’m eagerly awaiting the ban on daydreaming while driving, looking at a pretty sunset through the window, and clapping along when “My Best Friend’s Girl” comes on the radio, to ensure that this quest to keep the city streets safe continues along this logical path.

Okay, yeah – it’s a stupid law. For multiple reasons. We can pick and choose among them, if we like (I’ll see your “lots of things are distracting for drivers” and raise you a “reckless driving is already illegal”), but the thing that sticks in my mind is how unenforceable it is. And when I say “unenforceable”, I don’t mean “unlikely to be enforced” – at $500 a pop, I’m pretty sure that motorists are going to find themselves on the receiving end of APD enforcement efforts. I mean that the actual law, as it’s written, is impossible to enforce without ticketing people for things that are completely legal.

Here’s the basic rundown of the law: Using a phone – the devices that are restricted have to be attached to a commercial mobile service – to do anything other than make a call, unless the car is stopped at a red light, is banned. That means that changing the artist who’s playing on your iPhone is illegal. You know what’s not illegal? Changing the artist who’s playing on your iPod Touch, which is a virtually identical piece of hardware that doesn’t connect to a commercial mobile service. One behavior is so dangerous that it needed to be outlawed, while the other is a-okay, and there is literally no difference between them, other than whether the device is connected to AT&T’s network. I’m not totally clear on how the law affects a phone that’s set to “airplane” mode, but I knocked on David’s door to get his take on all of this.

“The key word here is ‘overbroad’,” he said. “This is basically a license to pull over anyone for any reason. A police officer could say, ‘Oh, I thought he was texting. I was wrong, but I searched the car and found drugs.’” He explained to me – a non-lawyer who knows not the technical terms – that statutes are found to be unconstitutional for two reasons, most of the time. Either they’re void for vagueness, or they’re overbroad. The initial draft of the bill had problems with vagueness – it made it illegal to look at a text message, but not illegal to look at your phone to check an email (it also accidentally made it illegal to answer a phone call, but not to make one). The revision that went into effect on January 1st added the language “or engage other application software”, which eliminated some of the vagueness (though we’re still unclear on what the exact definition of “dialing” is – I use an iPhone, and I have to open my “phone” app, and then cycle either to “keypad” or “contacts” before I can make a call)… But it’s hard to argue that it’s not overbroad.

David asks, when investigating overbroadness: “Can every single police officer enforce the law in the same way?” I think it’s pretty difficult to insist that they can, when it involves a device that fits in the palm of the user’s hand, in many cases looks identical to a device that’s not outlawed by the ordinance, and features certain applications that are legal, and that appear indistinguishable from other, illegal applications.

Austin City Councilman Chris Riley, meanwhile, insists that the new language, “is broader but it really is about safety.” I know Chris Riley a little bit – we did an interview when he was a candidate in early 2009 for another outlet to which I contribute – and I don’t doubt that he believes what he says. It’s hard to argue it, even, and the notion that we’re made safer when socially undesirable acts like texting while driving are outlawed, as opposed to merely frowned upon, carries some water. So here’s a solution, courtesy of the techies over at Unicom – it can still be illegal to text while driving, but, they say, limit to to what’s called a secondary offense.

This means that peace officers wouldn't be pulling people over for using cell phones. Instead, they'd pull somebody over for swerving or running a stop sign or not watching the road, and then cite them under subsection (B) if they were found to be using a cell phone dangerously. This is consistent with the way the Austin Police Department says they plan to enforce the texting ordinance.

That sure seems like the best of both worlds to me. It still puts an increased social pressure on people to put the &$%#ing phone down while driving, which is something we would like to see happen, without giving APD carte blanche to pull over anyone on suspicion of having texted.

David, meanwhile, wanted me to mention that, while we’ve agreed as a New Year’s resolution not to take on any more pro bono cases, if you do find yourself cited under the texting ban, depending on your circumstances (hint: not texting while driving while drunk behind the wheel of a stolen F-150), you should give us a call and we’ll see about fighting this together at what would probably be a really affordable rate.

Labels: APD, driving while texting, over-criminalization

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Houston attorney Paul Kennedy found this the other day – it’s a website that uses a Google Maps overlay to tell you which of your neighbors have been convicted of any sort of crime. While it’s called “FelonSpy”, it also catalogs misdemeanors, and they’re hoping that they’ll be able to include people who’ve been accused but either acquitted or had the charges dismissed, too.

We could make a list of all the ways this is wrong-headed and offensive, but that’d take too much time, given that they’re the sort of people who dismiss the suggestion that someone might be listed on their site in error with the following line:

“There are no mistakes in this site, and if you think there is, you’re probably the exact sort of criminal we all need to beware of.”

They’d probably just ignore the list if we made one. I’m betting, though, that just like the folks behind Busted! In Austin, if the site’s founders’ mom was arrested, they’d be a little less quick to include her on the map.

Labels: exploitation, presumption of innocence, tacky

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Local defense attorney Kiele Linroth Pace has started a courageous project on her blog, the Austin Police Notebook. In it, she identifies APD officers accused of misconduct and explains the details, sourced by outside reports, and explaining the disciplinary action taken. An example:

Police Notebook: Roger Boudreau (APD)

Officer: Roger Boudreau
Agency: APD
Alleged Misconduct: Lied about his actions in a 2007 shootout, causing a man he shot to be charged with aggravated assault with a deadly weapon and spend 13 months in jail before being released on personal bond. The man also lost a leg as a result of the shooting. The charges were ultimately dismissed in 2008 after the state’s own experts examined an audio tape recording of the confrontation and agreed with the defendant’s version of events rather than the officer’s.
Disciplinary Action: None known. Boudreau actually received APD’s Medal of Valor (the department’s highest honor) for displaying exceptional bravery in the incident.
Source: This Statesman article.

It’s definitely bold, and it’s got a lot of potential to be a pretty great resource. I know a lot of people who tend to refuse to believe stories about police misconduct when it’s presented in vague, non-specific terms. Names, sources, and the full details go a long way toward making them a whole lot more convincing.

Labels: APD, police misconduct

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Check this story out, if you want your head to explode with exactly how ridiculous people can be sometimes.

For those who’d like to keep their heads intact, here’s a summary: Father and daughter in Houston go out for a few drinks over Thanksgiving. Rather than drive and endanger their fellow motorists on their return trip, they opt to take a cab. After consuming their drinks, and enjoying their evening, they call the cab company to request that one pick them up and take them home. They proceed to wait outside of the bar for the taxi.

Police officer decides that they ought not be on the street, tells them that if their cab doesn’t show up in ten minutes, they’re under arrest for public intoxication. They tell him the cab company said twenty minutes, and walk to the corner so they can see when it arrives. Police officer decides that enough is enough, and hauls ‘em in.

Holy wah, as our friends in the upper peninsula of Northern Michigan might say. At least they didn’t get tasered, I guess.

Labels: dwi, stupid arrests

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This is neat. Craig Watkins is the Dallas County DA whose “conviction integrity units” have worked with groups like the Innocence Project to ensure that everyone incarcerated in Dallas is actually guilty. (There’s a great Wall Street Journal piece on the man here.)

Anyway, he was on The Colbert Report last night to talk about his work, and it’s funny, as Colbert’s interviews usually are, and Watkins comes off better than most of Colbert’s guests usually do. But he really cuts to the significant point very quickly, which is something I’ve heard debated a lot (in reference to Roman Polanski, most recently, but it hardly began or ended with him) – basically, if we know someone is guilty, why does it matter so much if things are handled by the letter of the law?

And the answer – as most attorneys surely know, but most laymen feel is a subject of worthwhile debate – is that, if you can’t trust that the system is functioning fairly in cases where there’s no real debate regarding innocence, then it’s really, really hard to have faith that it’s functioning properly when there’s a genuine dispute. Watkins uses OJ as his example, but it’s a debate that I had with some fellow non-lawyer friends regarding Polanski a few weeks ago.

(A little background, if you ignored the circus: Roman Polanski, accused of, among other things, raping a teenage girl in the 1970’s, fled the country after he entered his guilty plea in response to a sentence that wasn’t what he expected. The judge in the case has been accused of impropriety, and since Polanski’s re-arrest two months ago, the fairness of the original proceedings have come into question.)

My friends, all of whom are good and moral people who are repulsed by Polanski and the accusations against him, which he’s never disputed, don’t get why it’s such a big deal if the judge inserted himself into the plea bargain process, offered a very light deal, and then started asking reporters and prosecutors if he should maybe up the sentence a bit. “The guy raped a teenager,” they say, “And we all know he did it. Who cares if the judge got a second opinion and then decided to give the guy what he really deserves?”

It’s convincing, because all of that’s true. What Watkins has had the courage – both in his actions as DA, and even on Colbert last night – to point out is that it’s more important that we get it right when someone is guilty. If we (and by we, I mean the people on behalf of whom the state seeks justice) can’t work within the legal framework we’ve established to convict someone whose guilt is never really in doubt, then what hope is there that a person who’s guilt is anything but a foregone conclusion will get treated legally and fairly?

I don’t know a ton about Watkins – just what I’ve read in various media and on the occasional blog, really – but we’re definitely lucky to have him advancing this argument.

Labels: craig watkins, innocence, innocence project, presumption of innocence, public perception, roman polanski, what prosecutors do right, wrongful convictions

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There’s lots of talk about Tiger Woods right now. After a “minor car accident” on his own property, he’s gone back and forth regarding speaking to the police, and finally hired Orlando criminal defense attorney Mark NeJame, who’s advised him to keep his mouth shut – as any good defense attorney would do.

I thought it was interesting that a lot of the talk about the fact that Woods hired a defense attorney made mention of a 2003 article that described NeJame as “Orlando’s own Johnnie Cochran”. It reminded me of the Chris Rock joke about Cochran and Kobe Bryant – people said that Kobe shouldn’t have hired Cochran because it made him look guilty, and Rock’s joke is that, yeah, maybe, but at least then you get off, and you’re the guilty-looking person who goes free, rather than the innocent-looking guy in jail.

That perception, that by hiring Orlando’s Johnnie Cochran equivalent, Woods must have done something wrong, isn’t an accident, I don’t think. I don’t think that it keeps getting brought up by coincidence – there’s a strong push to suggest here (as in most cases) – that Tiger Woods has something to hide by hiring this guy.

That’s my take on it, anyway, but I am but a guy who works in the office. The office is full of smart attorneys, however, so I talked to Kristi Couvillon, one of those smart attorneys, for her take on it.

“A lot of innocent people haven’t hired attorneys for that reason and some of them have found themselves convicted,” she said. “I think an innocent person has more reason to hire an attorney, not less. Honest statements can be misconstrued and used by law enforcement as statements of guilt, and it would be so much worse, to me, for that to happen if I hadn’t done anything wrong.”

Which makes sense, especially if you’re high in the running for title of “most famous person in the world”, like Tiger Woods, and people would get a thrill out of seeing you brought down. The stakes are pretty low here, for sure – Woods probably faces misdemeanor charges, at most, though that’s just my speculation based on some media reports – but that only makes it more interesting that there’s this rush to tarnish his image (especially considering how squeaky-clean it is) right now, what with the “he hired the equivalent of Johnnie Cochran” bupkis and all. If there’s a clear interest in convicting the guy of something in the court of public opinion right now, that’s probably all the reason he needs to defend himself with an attorney. I wouldn’t be talking to the police right now, either.

Labels: hiring a lawyer, in the news, presumption of innocence, public perception

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From Indiana defense attorney John Kindley’s blog, People vs. State:

What, after all, does “an eye for an eye,” the paradigmatic principle of justice, mean? One thing it means is to forbid taking two eyes for one eye.

I’ve been reading a lot about jails and prisons lately – see, among others, the Washtenaw County Jail Diary linked here last week – and one thing that comes up so often is that trope about “if you can’t do the time, don’t do the crime”, and how it’s used to justify any excessive or (frankly) obscene treatment offered to anyone incarcerated or detained for any reason. In the case of the Washtenaw County Jail in Michigan, the comments section (always a mistake to read) features a bunch of people talking about how they refuse to feel sorry for a criminal, even if he’s sleeping on a floor smeared with human waste because, after all, he “did the crime” (we’ll ignore, for the sake of argument, that that guy’s just a detainee who has yet to be convicted). Even if he’s guilty – those proponents of “eye for an eye” justice forget that it’s a call for proportional punishment, not a call for any punishment up to and including gouging somebody’s eye out. It’s not “an eye for a DWI” or “an eye for misapplication of fiduciary property” – or, for that matter, “months of eating green bologna and 150-degree temperatures in desert tent cities and serving on chain gangs for theft”.

It’s easy to use those Old Testament maxims to justify excessively harsh treatment, but maybe those who do should consider what they actually mean.

Labels: eye for an eye, jail, justice, prisoner mistreatment

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Reading Scott Greenfield’s indispensible Simple Justice blog this morning, like I do every morning, I saw his post on the new DWI law passed at warp speed by the New York legislature, which makes DWI with a minor 15 years old or younger in the car an automatic felony with no possibility for reduction. The original story ran on Gothamist (full disclosure: I’m an editor for Gothamist's Austin-based site, Austinist) and boy, the comments there – as per usual for comments on the Internet in response to just about anything – are pretty frustrating, full of strident comments from people who only half-understand what they’ve just read.

To be certain, driving while intoxicated is very serious. The casual attitude around the legal blogosphere (I can’t bring myself to spell it “blawgosphere”) that sometimes accompanies it is something I’ve struggled with in the past. But the self-righteous stridency with which it’s condemned has always struck me as the gentlemen doth protesting too much. DWI cases, so often, aren’t clear-cut situations in which someone is totally wasted and opted to get behind the wheel anyway. So many of them are situations in which a driver who’s well under the legal limit is driving, stopped for any of a zillion reasons that have nothing to do with the beer he had with dinner, and arrested because the officer smelled alcohol on his breath. It’s not a crime to drive with the smell of alcohol on your breath, but now – if there’s a kid in the car – it’s going to see everyone arrested for it facing down a felony, with the ability of judges and prosecutors to use their discretion removed.

And all of those people in the comments who are celebrating the lighting-quick passage of this legislation – I’m willing to bet if any of them were arrested, they’d miss the ability of the courts to use discretion in their cases more than they’d suffer from the occasional person who’s actually guilty of DWI being charged with a misdemeanor when they really, really want a felony.

Labels: dwi, internet commenters, mandates, simple justice

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Last month the Travis County District Attorney’s office dismissed all charges against Michael Scott and Robert Springsteen – the defendants in the yogurt shop murders. What an extraordinary outcome. I can only imagine how those two must feel. It’s also hard to imagine how the attorneys must feel after such a struggle with so much at stake.

There are challenges that occur in our lives that define who we are, for better or for worse, and this was certainly a huge challenge for the attorneys involved. I spoke with my close friend, Carlos Garcia, over the weekend and he told me about the experience.

Carlos was lead counsel on Michael Scott’s trial team. For the past two years he has worked on that case to the almost complete exclusion of everything else. Both his law practice and his personal life have suffered. At one point he told me he felt like he had missed two years of his youngest daughter’s life. As he put it, “I would often work at the office until 7:00 PM or so and then go home where I’d work until 1:00 AM. Some evenings my only contact with Samantha was having her in my lap while I reached around and worked on my computer.”

Carlos’ focus on Michael Scott resulted in his law practice being supported almost entirely by his partner, Nicole True. Nicole handled all new cases and well as their 100 plus existing cases. The financial burden became extreme as cash flow diminished.

There was an emotional toll, and not one that you would necessarily expect. Keeping all the attorneys involved in the case working in an effective fashion proved difficult. There was disagreement regarding strategy and how to proceed at times. There was discord and in-fighting. And there was unethical behavior to the point of a grievance being filed against one of the attorneys on the trial team.

When it comes to our legal system and how it is designed to work, it doesn’t matter whether you believe that the defendant’s were guilty or innocent. What matters is that both sides were zealously represented and treated correctly in a court of law. What matters is that someone has the intestinal fortitude to step up to a challenging situation and not back down when things become difficult…so, kudos to you Carlos for doing your job in spite of all the obstacles and hardship. You definitely stepped up to the challenge. You make all of us that practice criminal defense look good and I’m proud to call you my friend.

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The Ann Arbor Chronicle has been running a serialized memoir from a man who spent a few months incarcerated in the Washtenaw County Jail in Michigan. It’s pretty compelling stuff, and definitely worth reading if you’re curious what the experience is like. It doesn’t speak for everyone, and the Washtenaw experience sounds a bit different from what the Travis County one is like, from what I know, but it’s still a decent resource regarding what to expect in jail, some tips on behavior, and fostering maybe a bit of compassion.

(To that end, as is often true on the Internet, avoid the Comments section, which is full of the standard “anything that happens to a person in jail is totally justified because they’re the ones who got themselves put in there” – which is especially egregious in this case, because the anonymous author was detained awaiting trial, not actually convicted of anything.)

Labels: jail

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Houston attorney Mark Bennett, on his blog Defending People, has an excellent post up about “How To Choose A Criminal Defense Attorney” that drops most of the self-promoting junk that usually accompanies an attorney’s take on the matter, and actually helps answer the question.

This is a subject that comes up around our office and our marketing discussions pretty often, because we know how we want clients to pick an attorney, and we know how we fear they do it.

Want: “Will this person do the best job possible for my case?” “Does this person really know the law?” “Does this person care about me?”

Fear: “The other guy was cheaper.” “You’re never guaranteed to get off, so why trust anyone?” “Someone else said they had a 99% chance of getting a dismissal.”

The “fear” responses are scary because they’re never going to get anyone to come through our door, which is a bummer since we like to be busy, and because we have a lot of attorneys who are either parents or about to be, and all of their kids insist on eating every single day. They’re also scary because they’re usually the direct path to a bad lawyer.

There are a lot of bad lawyers in Austin – oftentimes, but not always, you can identify them by their caseload. Anyone with a high-volume practice is probably too busy to do a terrific job for you, or to give you a ton of personal attention. (Your case does require personal attention – even if it’s just a DWI, and during the consultation, the lawyer promised that he’d get you a dismissal if the cop did any of a zillion made-up things incorrectly.) It’s just math – hours in the day divided by clients equals you not being very important, and that typically translates to a plea, rather than a dismissal. We don’t like bad lawyers because they hurt our reputation, too, leading people to think that everyone who does what we do is sleazy, and because they get results that aren’t good enough for the good people we’ve set up shop to help.

So when a client insists that they just want the cheapest lawyer possible, it makes me, personally – Dan, the guy who works in the office – kind of sad, because it means that they don’t really know how to do this, or realize that it’s actually very important. When I hear that you’re never guaranteed a result, so it’s all a big crapshoot in the end – which is something I heard fairly often when we were conducting some market research – it makes it all sound kind of weird and metaphysical, like the odds of anything happening are 50/50, either it happens or it doesn’t. Either you get a good result from your lawyer, or you don’t, so who cares who the lawyer is? (Seriously – people actually say stuff like this when they’re being paid $50 to be honest.)

And the 99% chance of dismissal thing – oh, lord. Austin defense attorney Jamie Spencer had a blog entry about that recently that summed it up pretty well.

So what we want is for clients, before they walk in the door, to have some understanding of how to value our services. We do things a little bit differently here, with an in-house social work staff (and now a psychologist a couple days a week) which we find make a big difference. (It also helps save the client a little bit of money, because a social worker can do things that other firms just use attorneys for, and they’re both more efficient at it and way cheaper, in terms of hourly rates.) We also run a relatively low-volume practice (for a firm with so many attorneys), and we think that these things tend to make us pretty good at what we do. But it’s hard, if you’ve never hired an attorney before, to know what to value and how to value it.

That’s where Bennett’s blog provides such a useful service. Following his advice won’t necessarily lead everyone to us, which is okay, but it should at least prepare people to know what a good lawyer is, as opposed to a bad one.

Labels: hiring a lawyer

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That subject line comes from the email that Internal Affairs detective Chris Dunn, who was investigating the shooting of Nathaniel Sanders, sent when he figured out that he could use Sanders’ prior criminal history to justify the fact that APD shot the 18 year old young man while every officer on the scene had apparently forgotten to turn on their dashboard camera.

Which, as Chief Acevedo said, raises a few red flags, as IA’s job isn’t to be scary-smart about “making a causation” that excuses a shooting, it’s to investigate the truth of what happened. If Internal Affairs is on the record as trying to provide justifications when the police, um, shoot young black teenagers with no evidence of wrongdoing, then it surely does a bit of damage to their credibility as an institution.

Luckily, Acevedo agrees, and the detective was fired yesterday. But isn’t it kind of disturbing that we have to consider the facts that A) the memo leaked and B) Acevedo responded correctly to be luck?

Labels: APD, art acevedo, nathaniel sanders II, police violence

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