D.A.’s Office Uses Confiscated Funds to Purchase New Breath-Testing Machines
January 26, 2012http://www.chron.com/news/houston-texas/article/DA-s-office-gives-HPD-funds-for-new-2690298.php
It appears that rather than fill the public coffers or pay off any public debts, the Harris County District Attorney’s Office has decided to use nearly half a million dollars procured through asset forfeitures to pay for new breath-testing equipment. The way asset forfeitures work goes like this: Say that you get arrested and at the time of your arrest you happen to have a little cash in your pocket. Well, the District Attorney’s Office alleges that the cash you had was used to commit a crime, or was the ill-gotten gains of some nefarious activity, and files a lawsuit against you in order to permanently confiscate the money. And it isn’t just cash, they can file on you for practically anything that happened to be in your possession when you were arrested, including your car, your jewelry, or anything else of value. You have a right to contest the confiscation of your property, but it might cost you a pretty penny in lawyers’ fees, or a percentage of the cash that was taken from you, and there is no guarantee you will ever get it back.
Well, today the District Attorney declared that the monies they have confiscated will be invested in more breath-alcohol testing machines for the Houston Police Department. This is puzzling because the last time I checked, Harris County has the following financial problems:
1. The Harris County Public Libraries are currently underfunded and have been forced to operate at reduced hours. Moreover, some libraries in the Houston Public Library system have been shuttered entirely due to budget shortfalls. Apparently, making sure that motorists do not have a .08 or greater breath-alcohol concentration is more important than teaching children to read and promoting adult literacy.
2. Last year the Mental Health and Mental Retardation Authority of Harris County (MHMRA) suffered a 10% budget cut due to shortfalls. For those of you who don’t know, MHMRA is the agency that is responsible for providing mental health care services to Houston’s poor and needy. In many cases, poor people with mental health problems either land in jail, or remain impoverished because they cannot cope with their issues. Apparently, making sure that people have less than a .08 BAC is more important than improving the lives of the mentally ill.
3. The Houston Public School System has been forced to lay off teachers and other employees, and increase class sizes due to budget cuts. Apparently, providing our young people with a quality education is less important that making sure that motorists are alcohol free.
4. Last year Harris County laid off 1, 137 people. The layoffs were spread-out so that no one department was affected to heavily, but the layoffs mean a lot to those who lost their jobs. And apparently, their jobs are not as important as new equipment to test the BAC of Houston motorists.
These are but four examples of the many ways that budgetary shortfalls have affected Harris County, and, to be fair, a half a million dollars is not enough money to fix any one of them. But any family that has ever had to pinch pennies knows that every little bit helps, and you have to prioritize the things that are the most important. Apparently, the District Attorney’s Office feels that breath-testing motorists is more important than any of the problems I have listed.
Feel free to post comments to this article describing what you think would be the best use of a half a million dollars in public money. And as always, if you or a loved one has been accused of a crime in Harris County, call the Law Office of Sharp & Driver for a free consultation. It is important to secure qualified and competent representation to defend your rights.
Comments (no responses)Law enforcement must seek a warrant before they plant a GPS device on your car
January 23, 2012http://www.wired.com/threatlevel/2012/01/scotus-gps-ruling/
In a recent decision by the Supreme Court of the United States the high court now places new restrictions on the government’s ability to track and trace suspects in criminal investigations. The issue was whether in today’s high-tech era, where privacy is becoming more a relic of the past (at least in the trend of cases coming down from the Supreme Court), can the government tag a suspect’s vehicle without any probable cause and trace his movements for months before bringing any attention to the courts?
In United States v. Jones law enforcement officials sought and acquired a warrant to place a tracking device on the car of the defendant’s wife. However, the warrant stated that the device must be placed on the car within ten days. On the eleventh day after receiving the warrant, the government placed the tracking device on the defendant’s car. The government then tracked the movements of the defendant for twenty eight days. The government used the information it received in compiling a case against the defendant.
During the trial the defendant moved to suppress all of the evidence obtained as a result of the illegally executed warrant. The trial court held that while the information received while the defendant’s car was at his house should be suppressed, the government was entitled to use the data it recorded from the defendant’s movements outside his home, because in that instance he had no “expectation of privacy” regarding movements outside his household. The appeals court reversed the trial court and held that the fourth amendment applied to these situations regardless of the defendant’s expectation of privacy, and since law enforcement was not acting pursuant to a valid warrant all evidence seized as a result of the illegal search should be suppressed. The Supreme Court sustained the D.C. Circuit court’s holding that admission of evidence obtained from warrantless use of a GPS device violated the defendant’s Fourth Amendment rights.
In its holding, the Supreme Court stated that use of a GPS device on a vehicle constituted a search under the Fourth Amendment. Therefore, the government should have sought to obtain a new warrant in order to legally install a GPS device for evidence collection in order to avoid trampling the defendant’s rights. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” In this case the government physically intruded, the Court even used the word “trespassory”, upon the property of the defendant for the purpose of obtaining evidence to be used against the defendant later on.
By requiring law enforcement to obtain a warrant before installing a GPS device to track a suspect’s movements, the Court has soundly rejected the idea that law enforcement may commence an intrusive investigation against someone without probable cause.
This decision is notably devoid of any mention of whether a government hijacking of a private GPS system is permissible. Such a situation would occur if a defendant’s car was equipped with a LoJack system and the government hacked into that GPS system. Also absent was a clear indication that these types of GPS planting operations are per se in violation of the Fourth Amendment. The court was clear in its majority decision that 28 days was far too long to operate a GPS system without a warrant, but it failed to clarify if a 10 day trace would pass constitutional muster.
In all, this is a great decision for the rights of individuals and a knock against the ever-crowded police state. While not all privacy concerns were addressed in this decision, this decision is definitely a step in the right direction for individual rights.
If you or a loved one are currently or has been the subject of a criminal investigation then you need the advice of a criminal defense attorney to help guide you through the process and to ensure that your rights are not ignored or waived. Call the attorneys at Sharp & Driver PLLC today for your free consultation.
Comments (no responses)Montgomery County Sherriff Will Use Unmanned Drones to Conduct Surveillance
October 31, 2011http://blog.chron.com/newswatch/2011/10/texas-civil-libertarians-oppose-law-enforcement-drones/
The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter.
- William Pitt, 1763
The Montgomery County Sherriff’s Department has announced that it will begin using an unmanned drone to assist deputies in executing their duties. Officials announced that the drone will be used to find missing persons and assist firefighters, but it could conceivably be used for other purposes. A spokesperson for the American Civil Liberties Union of Texas has said that the use of surveillance drones by police is troubling because there are not enough safeguards to protect people from unreasonable searches and seizures.
Technological developments continue to present questions of how far the government may go when conducting surveillance. The Constitutions of both Texas and the United States give people the right to be free from unreasonable searches and seizures, and for good reason. Typically, to enter someone’s home, search his or her premises, and seize his or her property (or person for that matter) the Government must first obtain a warrant from a judge. The reason for this rule is self-evident to anyone who has had experience dealing with the Government: If people did not have these rights, the Government would have free reign to search homes and seize property for any reason, or for no reason at all. We would effectively be living in a police state.
When our Founding Fathers added this rule to the United States Constitution in the late Eighteenth Century they could not have foreseen the extraordinary technological developments that would take place over the next two centuries. Many of these new technologies (such as wiretaps and hidden camera surveillance) have created privacy concerns where such concerns did not previously exist. The latest such development is the use by law enforcement of unmanned drones to conduct surveillance over their respective jurisdictions. It is the function of Judges and Appellate Courts to determine whether privacy intrusions created by new technologies infringe upon people’s constitutional rights. For instance in Kyllo v. United States, the United States Supreme Court found that use of a thermal imaging device to determine whether someone’s house was emitting an unusual amount of heat constituted a search for the purposes of the Fourth Amendment. Because of this, whenever the police want to use a thermal imaging device to search someone’s house, they must first obtain a warrant. Next month the Supreme Court will hear the case of United States v. Jones, where they will be called upon to decide whether the police violate someone’s right to privacy when they attach a GPS tracking device to his or her vehicle and remotely monitor his or her movements.
Whether surveillance conducted by unmanned drones constitutes an unreasonable search under the Fourth Amendment is an issue that will undoubtedly be decided by future United States Supreme Court decisions. If you or a loved one have been accused of a crime, contact the Law Offices of Sharp & Driver for a free consultation.
Comments (no responses)Carrying a firearm is illegal when you drink and drive
October 19, 2011In the story linked above an off duty Houston Police Department Sargent was arrested for Driving While Intoxicated while off duty. He also happened to be carrying his service revolver when he allegedly operated his vehicle while intoxicated. He was charged with unlawful carrying a weapon (a misdemeanor) and with DWI (also a misdemeanor).
Ordinarily, a police officer is licensed to legally carry a firearm while off duty. However, a license holder will still violate the law if he carries a handgun while intoxicated. Also, if a person carries a firearm and commits a law violation then he can also be charged with unlawful carrying of a weapon.
The unlawful carrying of a weapon statutes are found in chapter 46 of the Texas Penal Code. There are different sections of the penal code for suspects who are not licensed to carry a concealed weapon and those that are licensed to carry weapons. There are major differences in the amount of proof needed for the State to gain convictions for unlawful carrying of a weapon for licensed and unlicensed defendants.
To prove that an unlicensed person committed the act of unlawful carrying of a weapon the State needs to prove beyond a reasonable doubt that a person intentionally, knowingly, or recklessly carried a handgun, a club, or a knife on or about his person in any place that is not his own premises or his automobile. The automobile “exception” to the rule that you cannot carry a weapon has its own exceptions. For instance, you cannot be engaged in a crime for anything other than a class C misdemeanor punishable by the traffic code, be affiliated with a street gang, or carry the weapon in plain view in the automobile. The “plain view” language is often inappropriately adopted from drug law, which means that in many cases where an officer sees your weapon unconcealed at any time they may arrest you for unlawful carrying of a weapon, regardless if the exposure of the weapon was due to a search of the car or by accident.
Generally, accidental exposure of a weapon is not a violation when the holder is carrying the weapon under the authority of a Texas Concealed Handgun License. In cases of accidental exposure by a license holder, the license holder needs only to conceal the weapon when the exposure is brought to his attention.
There are many defenses available to the average weapon holder, even if they are not licensed to carry a firearm. However, defenses are fact-specific to each charge and must be addressed on a case-by-case basis. If you or a loved one has been charged with unlawfully carrying a firearm then you need to consult a criminal defense attorney that is familiar with the weapons laws in Texas. The law offices of Sharp & Driver PLLC has experience in trying unlawful carrying cases and we will be more than willing to consult with you about the facts of your case. Call today for a free consultation.
Comments (no responses)Sharp & Driver Get a Not Guilty on a Criminal Mischief Case
October 13, 2011The firm of Sharp & Driver recently tried a case in Austin, Texas County Court 7 and successfully argued self defense to the jury. The charge was criminal mischief, which can be charged as either a felony or a misdemeanor. In this case the State charged their client with a misdemeanor.
The facts of the case were sharply disputed, and three different versions of the event were told to the jury. The undisputed facts were that the complainant, a firefighter, was in a car while the defendant was on a bicycle; defendant smashed out the complainant’s windshield with a bike lock; that the defendant ran a stop sign; and that the complainant and the defendant had a verbal altercation only moments before the incident.
The complaining witness took the stand and told the jury that he was a firefighter, knew the dangers of reckless driving and considered himself a “paranoid driver,” meaning he was always on the lookout for dangers in the road. He said that he was a firefighter on his way to work when he saw the defendant run a stop sign. The complainant then yelled at the defendant about running the stop sign and proceeded down the road to the fire station where he worked. The complainant then stated that as he was waiting to turn into the fire station the defendant smashed his windshield and ran up to the fire station door. The police were called at that point.
The defendant took the stand and told a different version of events. He said that as he was riding down a street that had cracks in it he had to ride in the center of the lane. He said that he heard the complainant “rev” his engine and honk his horn. Thereafter the two had a verbal altercation and the defendant threatened the driver with a broken windshield if he didn’t back off. He then claimed that the car swerved in front of him, barely missing him. At that time, he decided to change course and head to the fire station, which he knew to be a block away. He saw the car stop at the stop sign, but he didn’t wait for the car to go, he ran the stop sign and started pedaling fast towards the fire station. As he was approaching the fire station he claims the complainant ran his car over the bicycle lane and began yelling at him some more. Fearing for his life, but knowing it would not save him if the driver continued to drive into the bike lane, the defendant lashed out by swinging his bike lock at the car, smashing the windshield. He then stated that he ran to the front door and asked for the fire fighters to call the police. Only after he got to the fire station did the defendant discover that the driver of the car was actually a fire fighter who worked at that station. He then decided to wait across the street for the police.
The police arrived about fifteen minutes after they were called. They took the statements of the complainant and the defendant and told them both to go home, write up statements and that an investigator would contact them. An investigator attempted to contact the complainant several times, but never attempted to contact the defendant. The complainant then waited three and a half months before coming to the police department to give a statement. In fact, the next time the defendant heard from the police was when they came to his house to arrest him.
Sharp & Driver took the case knowing that they were going to argue self defense. Self defense is a justification for criminal behavior. It is not against the law to use force, even deadly force in some circumstances, if you feel as though your safety or life are threatened. Of course, a person must have a reasonable belief that force is immediately necessary to protect yourself before you use force. Also, you cannot start the conflict and then claim self-defense.
In the case of our client, the State attempted to exclude the self-defense jury instruction by making a showing that the defendant knew that striking the complainant’s car with his bike lock was not immediately necessary to prevent serious bodily injury or death to the defendant. However, there is not need to prove that the person claiming self-defense believe that his life was at stake if he did not act, nor believe that he would be seriously injured if he did not act. There is no duty to retreat in Texas, and no duty to take all available alternatives to self-defense. The only requirement for self defense is that a person reasonably believes that force is immediately necessary to protect the actor against another’s illegal use of force.
The court granted our request for a jury instruction on the issue of self-defense over the State’s objections. The jury weighed the facts, determined credibility, followed the law, and acquitted our client. They believed our client’s version of the events, or at least, they did not believe that the State had disproved the assertion that our client acted in self-defense.
If you are charged with a crime of violence against a person or property, but you believe that your use of force was justified, then you may have a legal excuse for your actions. If you believe that your actions may be justified then you need an experienced and knowledgeable attorney to examine your facts, explain the law to you, and zealously represent your rights. If you or a loved one has been charged with a violent crime then contact the law offices of Sharp & Driver PLLC today for your free consultation.
Comments (no responses)Drug Dog Alerts and Your Rights
October 6, 2011In the story linked above a Montgomery County drug dog named “Bianca” alerted on an automobile containing approximately 75 lbs or Marijuana. The alert led to a search and seizure of the evidence, and the arrest of the four occupants. While the story is unclear about the facts surrounding the stop, there are some glaring issues that should concern everyone when reading about drug dog alerts and arrests.
Dogs have been used as investigative tools by law enforcement for many years. Dogs can be trained to detect explosives, drugs, and bodies. This is due to the dog’s heightened sense of smell, and their ability to learn to hone in their senses on specific scents. However, there, like any method the government uses to gather evidence, there are many flaws in evidence collection practices predicated upon dog sniffs.
In the Supreme Court case Illinois v. Caballes, 543 U.S. 405 (2005), the Court held that the use of trained dogs to sniff for illegal drugs in a car operating on a public highway is not a search within the meaning of the Fourth Amendment, because dog sniffs are only minimally intrusive and it occurred in a place where individuals do not have heightened expectations of privacy. According to the Supreme Court, there is no privacy interest in the odor that emanates from even a closed container because that odor is accessible to the public. Therefore, police officers need not establish probable cause or obtain a search warrant before they conduct dog sniffs. Instead, an alert by a trained dog, which identifies the smell of drugs, is probable cause to make an arrest or to obtain a search warrant. Moreover, dog sniffs do not require the opening of, or identify the contents of, containers; they merely indicate the presence or absence of drugs. Courts have expanded upon this “public smell” doctrine and likened it to the “plain view” doctrine that allows for the warrantless seizure of contraband by an officer who witnesses incriminating evidence.
There are, however, certain situations where dog sniffs may be searches subject to Fourth Amendment requirements. Dog sniffs are searches when they occur in places where neither the dog nor the police officer who is handling the dog is entitled to be. In other words, dog sniffs are searches when they occur in settings where the person who is the object of the search has a heightened expectation of privacy.
A dog handler’s behavior is also important in regards to dog sniff evidence. Dog sniffs may challenged when there is a scintilla of evidence showing that the dog was merely responding to its handlers cues, rather than on drugs. Also, if there is an issue as to whether the dog handler saw the dog actually alert to a target, the sniff, or rather the probable cause to search, may be challenged. Many courts will not allow evidence to be admitted if they were obtained from searches predicated upon dog detection if there was, in fact, no affirmative detection.
Based upon the sparse information in the linked news article there is no way to tell if there are facts that could be challenged in relation to the dog detection. A defense attorney must independently investigate the scene, the police officers, the dog handler and the dog in order to determine whether the dog sniff actually passed constitutional and legal muster.
If you or a loved one has been charged with a possession crime where a detection dog’s alert was the basis for the probable cause for arrest then you need an attorney who knows what to look for when challenging the State’s evidence. Contact the law offices of Sharp & Driver PLLC today for your free consultation.
Comments (no responses)The State must establish affirmative links to a defendant
When the State charges a suspect with a possession crime, such as possession of a controlled substance or possession of a prohibited weapon, then it must prove beyond a reasonable doubt that the defendant had care, custody, control or management of the contraband. In order to prove care, custody, control or management the State must affirmatively link the contraband to the defendant. If the State fails to sufficiently link contraband to a defendant then they cannot, as a matter of law, obtain a conviction against the defendant.
The Law Office of Sharp & Driver, with assistance from attorney Stephen Howard, recently tried a felony drug case in the 263rd District Criminal Court in Harris County, Texas where the issues at trial were whether the officer saw their client possess illegal drugs. The trial lasted two days and resulted in an acquittal our client.
The State put on an undercover narcotics officer who testified that she observed the defendant engage in a narcotics transaction with an unidentified vehicle. She then testified that she called in uniformed officers to make an arrest. One of the uniformed officers then said they saw something drop from the defendant’s hands “out of the corner of his eye” and that when he collected it, it turned out to be drugs. However, when presented with the drug evidence in trial the uniformed officer could not recall if those were the drugs he collected. Nor could the officer say exactly where he found the drugs. Nor could he accurately recall the total number of people in the area, or why they were all allowed to leave.
During the presentation of our evidence our witnesses testified that the drugs were found twelve feet away from the defendant and underneath a neighbor’s car. Our defendant was also not immediately arrested, which would be normal for someone who was seen throwing down drugs, but rather, he was detained until they discovered he had outstanding traffic warrants from 2007.
The jury deliberated for about two hours before coming back with a verdict of “not guilty.” They concluded that the State failed to meet its burden beyond a reasonable doubt, and that the officers’ testimony lacked precision.
No lawyer can guarantee an outcome to any criminal proceeding. However, when the facts simply do not add up to guilt a defense attorney must make every attempt to discredit the allegations against a defendant. The jury weighs the facts and renders their verdict. If the State cannot meet its burden of proof then the jury must acquit the defendant.
If you have been charged with a crime involving possession you need a defense attorney that will fight for your rights, investigate the facts, and challenge the State’s evidence. Your choice in a criminal defense attorney should not be based on who is the most affordable, but who will work the hardest to protect you from the State’s allegations. You cannot expect the State to dismiss a case based purely on a question of fact. Your attorney must research the law, investigate the facts, and prepare to advocate your case before a jury.
At the law office of Sharp & Driver we will work diligently to protect your legal rights in the face of prosecution. While we cannot guarantee any outcome to any case we will dedicate ourselves to your cause and present a defense to the best of our ability. Call today for a free consultation.
Comments (no responses)Houston Officers are Disciplined for Covering Up a Fellow Officer’s DWI
September 28, 2011According to official documents made public this week, on April 21, 2011, Sgt. R. Trejo, an off-duty Houston Police Officer, slammed into the back of a school bus. The driver of the bus got out to make contact with him, and immediately noticed the smell of alcohol on his breath. He also observed several wine bottles inside of Trejo’s car. However, the police who were called to the scene somehow did not conclude that Trejo had caused the accident because he was intoxicated. Instead, they proceeded to hide evidence and cover up the crime. It was later revealed that officers who made the scene covered up the wine bottles with a cloth so that they could not be seen by the public, and later failed to collect these bottles as evidence. No attempt was made by any of the officers to further determine whether Trejo was intoxicated. Blood tests later determined that Trejo had a blood alcohol concentration of .205, which is more than twice the legal limit. The investigating officers failed to follow even the most basic police protocols, and were eventually reprimanded by the chief of police himself.
Mark Clark, the executive director of the Houston Police Officer’s Union issued a statement defending the investigating officers’ actions. He stated that at the time of the crash, despite the suspicious nature of the accident, the fact that Trejo smelled like alcohol, and the fact that there were wine bottles inside of his car, the police had insufficient evidence to believe Trejo had driven while intoxicated. This statement is not only ridiculous, it flies in the face of everything we as attorneys know about DWI investigations. The facts that Clark has outlined have justified many a DWI arrest. They certainly would justify further investigation into whether or not a Defendant was intoxicated. Clark is also defending several police officers who not only disregarded HPD policy, but likely committed a felony while they were doing it. Section 37.09 of the Texas Penal Code makes it a crime for a person who knows that an official investigation is taking place to alter, destroy, or conceal evidence with the intent to impair its availability in a future proceeding. If a person is convicted under this section the punishment can be anything from probation to 10 years in prison.
If you are suspected of DWI, you should not expect to be afforded the same benefit of the doubt as Sgt. Trejo. You should be respectful of the police, but know that they are only gathering evidence with which to show that you are intoxicated. Any evidence that you are sober will not be recorded by the officers, and it will take a skilled defense attorney to get them to admit that their evidence gathering procedures were flawed, and that their investigation did not rule out any of the various sources of driver impairment other than alcohol. If you have been accused of DWI call the Law Office of Sharp & Driver for a free consultation.
Comments (no responses)Sharp & Driver Successfully Argue for Post Conviction Habeas Corpus Relief
Today our offices argued an application for post conviction writ of habeas corpus in Harris County Court 14 before Hon. Michael Fields. The argument for a new trial was based upon our client’s former attorney’s ineffectiveness in negotiating a plea bargain with the State of Texas. Judge Fields listened to our arguments and considered the evidence proffered in support of granting post conviction habeas corpus relief. The State stood silent as to the issues and after considering the weight of the evidence Judge Fields granted relief by ordering a new trial for our client.
Our client, who will remain nameless in this post, was accused of family violence in 2009. He hired a trial attorney, who told him that his plea would not result in deportation, and that if he didn’t plea to a short jail sentence that he would be stuck in jail for up to six months before receiving a trial. These were patent misrepresentations of the law in its current form. Under Padilla v. Kentucky, a Supreme Court decision handed down in 2010, defense attorneys are required to inform their clients of the immigration consequences to a plea. Assault is a very serious charge, and may result in deportation or revocation of immigrant status.
Further, our client alleged that he was actually innocent, and but for the assurances of his attorney that he would not be deported, he would have chosen to go to trial. He was well aware that six months in jail awaiting trial was worth the price to pay to avoid being deported. His wife, whom he was accused of assaulting also provided testimony that he never assaulted her or her son. She wrote in an affidavit to the court that the police officers only spoke English, and that she and her husband only spoke Spanish. Her son, a boy in his late teens, even admitted under oath that it was he who in fact assaulted our client, and it was our client who had called the police on him.
Our client’s trial attorney, however, failed to even interview the complainant, her son, or even the client. Rather, the trial attorney took his fee, then pleaded our client out on the first setting to a short stint in county jail. The District Attorney’s office did call the complainant, and the complainant said she wished that the charges be dropped, but the State rarely drops cases on the plea of a complainant without further investigation.
Our client did his sentence and went back to his life. He went back to his wife and his household, where he lived peacefully, as he had done for the previous ten years. He maintained employment and he believed the whole incident was behind him. After all, his trial attorney assured him that he would not be deported.
Earlier this year he received notice that his immigration status was going to be revoked. He was arrested by Immigration and Customs Enforcement and slated for deportation based upon a conviction for family violence. His family had to scramble to get an immigration attorney. His immigration attorney got him a bond and looked at the evidence. When his immigration attorney asked him about the allegations he told him what happened. The immigration attorney then contacted our office to review the case and asked us if relief under Padilla was appropriate. We noticed several egregious errors in the available record and made the decision to accuse the client’s trial counsel of unconstitutional ineffective assistance.
It is always difficult to accuse a fellow lawyer of misconduct, but when someone’s liberty is at stake we, as attorneys, owe our clients our utmost efforts in preserving his or her rights. This duty is an affirmative duty and cannot be waived, passed on to an associate such as an investigator, paralegal, or law clerk. The constitutions of the United States and Texas, and the rules of professional conduct demand that we exercise due diligence to ensure that our clients receive all of the due process they are entitled to under the law.
When a lawyer displays a deficient performance in representing a criminal defendant then the defendant is unconstitutionally deprived of his or her right to a trial. Such displays are hopefully rare, but when they do happen the law allows for defendants or other attorneys to petition the court to make right what the original trial attorney did wrong. This mechanism is called a petition for habeas corpus, which is a show cause order that an applicant can make to prove that they were deprived of due process.
At the law offices of Sharp & Driver we strive to zealously represent each of our clients. We also strive to ensure that our legal brethren are held to the task to do the same. We will work diligently during the trial all the way past the last appeal to make sure that each client’s case is and was handled appropriately. If you or someone you know has been charged or convicted of a crime then you need experienced and zealous advocates in your corner. Call the law offices of Sharp & Driver today for your free consultation.
Comments (no responses)Police investigations end with arrest. Defense investigations begin at arrest.
September 24, 2011http://abclocal.go.com/ktrk/video?id=8364920&pid=8364579#global
http://www.huffingtonpost.com/2011/09/27/cops-ate-pot-brownies-houston_n_982051.html
Nicholas Hill was investigated and arrested for drug possession over four months ago. He told his attorneys J. Julio Vela and Daniel Cahill that the cops who arrested him ate pot brownies. That story was a bit hard for Cahill and Vela to swallow, until they subpoenaed the Mobile Data Terminal (MDT) printouts from the police cruisers involved in the bust. On those printouts the officers wrote “I’m so H I G H” and “Good Munchies” to each other and in detail typed what can be described as side-effects of cannabis intoxication.
“If [the allegations] actually are true, then we’re talking about is destruction of evidence. That’s a felony. We’re talking about official misconduct [potentially a Class A Misdemeanor]. We’re potentially talking about police offices driving around the city of Houston high on drugs, conducting official police business while high on drugs. It’s a pretty big deal,” Cahill said.
And it is a “big deal.” If the recent results in the Dr. Brown trial prove anything then it’s that in order to find someone guilty you need credible witnesses to supply your evidence. Here, if these allegations are true then the credibility of the officers is cast into doubt from the start. After all, who’s to say that the officers weren’t already intoxicated when they arrived at the scene? Did they actually destroy evidence by eating pot brownies and then lie about it? The conduct of the officers becomes the main question, which is really the last thing that the State’s prosecutors want to deal with in a trial where the actions those officers took are the sole basis for the case against a defendant.
Cahill and Vela exemplify due diligence in this case. Now, that’s not to say that defense attorneys should always turn over their work product to the media, but every defense attorney has a duty to seek out any and all evidence that may lead to a plausible defense. Here, Cahill and Vela sought public information that was created by the arresting officers around the time of the arrest of their client, and they happened to corroborate their client’s version of events that night.
Nicholas Hill’s case is still ongoing and it remains to be seen whether releasing this information to the press will affect the status of his case. However, this story does show that police officers who do not take their official roles seriously can cast doubts on the credibility of all officers.
Every criminal defendant has the right to compulsory process and access to public information to prepare their defense. Subpoenas, public information requests, Freedom of Information Act requests (FOIAs) are just a few tools that a knowledgeable defense attorney has at his or her disposal. Also, using outside resources, like private investigators and experts is almost always vital in order to present a complete defense to a criminal charge. If you are charged with a crime you need an experienced attorney who knows how to begin and follow through with an investigation into your case. Contact the Law Offices of Sharp & Driver for your free consultation today.
Comments (no responses)