Archive for January, 2010


January 27th, 2010

Can We Trust the Prosecution to Play Fair? No.

When you watch TV, the prosecutors are always the good guys.  Just check out Law & Order, for example.  Heroes, right? Well, things are different out in the real world.

Policeman Gives Sworn Statement, Dallas County Prosecutor Told Him (as Sole Eyewitness) Who to Point Out At Trial

Just this past week, another Texas scandal involving the Dallas County District Attorney’s Office is brewing. The ONLY eyewitness in a trial back in 1995 has now come forward, and given a sworn statement that the prosecutor coached the witness to take the stand and point the finger at defendant Richard Miles.

The “eyewitness” is now a police officer in Oklahoma, has signed an affidavit just this month, swearing that he was told where Mr. Miles would be sitting in the courtroom, and that he needed to point the finger at this man — even though the guy in the courtroom didn’t look like the man that Miles saw shoot a pistol into a car, killing one man and injuring another.

Miles isn’t going to be released based upon this Oklahoma cop’s affidavit because he’s already out — freed after 14 years behind bars — because a memo was discovered in an old Dallas County District Attorney file that identified someone else as the suspect … a memo that was never, ever turned over to the defense.

And this happens everywhere, apparently, since just this past week, over in Fort Lauderdale  ….

Before someone starts labeling this a rogue incident, an exception the rule of prosecutors being trustworthy, consider this new story that hit the stands this same week.  Over in Florida, the Public Defenders Office – supported by the Broward County Association of Criminal Defense Lawyers – has made public a letter that was sent to the office of State Attorney Mike Satz.  In it, the Public Defender’s Office flat out accuses the Florida prosecutors of routinely playing outside the rules.

The letter charges, in part, that the state attorneys there are not only routinely holding back evidence from defense attorneys that is helpful to the defendants, but they’re also covering up for bad cops and helping out those who come through their offices who happen to be of a higher socioeconomic level — the rich and powerful. (And you thought this only happened on Miami Vice reruns.)

The letter was sent just last Tuesday by Public Defender Howard Finkelstein, where he writes that he’s been forced “…to the inescapable conclusion that the [Florida] State Attorney’s Office, either through neglect or by design, has been non-compliant with its obligation to disclose favorable evidence to criminal defendants.”

Just Some Bad Actors, or Corruption in the System?  Hmmmm……

Of course, some might say that Broward County is a bad example.  It’s been labeled corrupt, and over the past two years alone there have been five arrests of elected officials, six cops have been sent to prison, and the city manager’s been tagged for embezzling a half-million bucks.

But then, maybe they haven’t been watching the Dallas County District Attorney’s Office much.  Heck, just last month the county commissioners voted to settle the lawsuit brought against Dallas County by a former investigator in the DA’s office, who had sued for wrongful termination alleging that he’d been fired for reporting the unethical behavior in the Dallas DA’s Office.

Curiouser and curiouser….

Posted by Michael Lowe at 6:48 pm

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Labels: Cop Watch, Corrupt Cops, DA Watch, Orwellian Threats to Rights


January 25th, 2010

Chief Justice Keller, Judge Berchelmann, and Public Humiliation. Whoa.

When last we wrote about Chief Justice Sharon Keller of the Texas Court of Criminal Appeals, she was down in San Antonio being tried for wrongdoing. That’s right — the top judge in the highest criminal court in this state, on trial.  State District Judge David Berchelmann, setting in Bexar County, Texas, was appointed to hear the evidence and make findings of fact.  These factfindings would then make their way to the State Judicial Commission for final resolution (read that “sentencing phase”).

All that bad, bad “Public Humiliation”

Well, last week Judge Berchelmann issued his ruling and you can read about it online at the Judicial Commission site (or download it as a pdf). And, boy howdy.  Judge Keller wins the round.

According to Judge Berchelmann, “Although Judge Keller’s conduct on that day was not exemplary, she did not engage in conduct so egregious that she should be removed from office, …[and should not receive] …. further reprimand beyond the public humiliation she has surely suffered.”

All those “Unwritten Rules”

Judge Berchelmann writes that Justice Keller did not violate any written or “unwritten” rule of procedure for this high court.  Then he discusses the rotation of the judge on duty for after-hours communications with the Court of Criminal Appeals.  Which we all know is important since they deal with last minute Death Row motions — like the one that caused all this controversy in the first place.  The duty judge business should looks like an “unwritten rule” ….

Read Page 7 of Berchelmann’s Opinion - Waffle, Waffle

It sure looks like Berchelmann found an “unwritten rule” here, too, though he fails to acknowledge it.  On page 7, (in section IV) he’s talking about the “oral tradition” that one justice would be the “point person for anything related to the case.”  Oral tradition, unwritten rule.  Potato, po-tah-toe.

And get this — in the very same paragraph where he’s discussing this “oral tradition” and how Justice Cheryl Johnson had been assigned as the point person for the Richard case, he uses the word “rule” to describe this internal court procedure.  Duoh.

Judge Berchelmann – Opinion or Argument?

Read Berchelmann’s product for yourself, and form your own conclusions.  See if you agree that what you’ve read is not a judicial determination of the facts surrounding these events, but instead a judge’s own argument to the Judicial Commission as to how it should rule.  The “factfinding” found in Section IV on page 7 does not comport with his determination that Justice Keller has done nothing wrong by his own standard of obedience to the “unwritten rules” of the Court of Criminal Appeals.

Public Humiliation, Indeed

One thing he’s got right here, and that this circumstance reeks of public humiliation.  Public humiliation on the national front of our state’s criminal justice system, and now our internal attempts to bring our judiciary to task, as well.

Posted by Michael Lowe at 4:10 pm

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January 20th, 2010

Irving Cop Pleads Guilty to Defrauding Feds

You know they thought this was a great idea, maybe even genius.  The Department of Housing and Urban Development up in Washington, D.C. implemented a program where law enforcement officers could get a house at HALF-PRICE as long as they bought a home in a pre-selected neighborhood, known to be less than stellar. 

That’s right: cops could buy a house for 50 cents on the dollar, as long as they bought in certain sections of town, and lived in the home for 36+ straight months.  It’s called the Good Neighbor Next Door/Officer Next Door program. 

It didn’t turn out so well for Irving police officer Ramon Anthony Reyes, Jr.

Over in Irving, a cop named Ramon Reyes, Jr. learned of the HUD program and got ideas.  On the force since 1998, Reyes knew the local area and its crime statistics well enough. He also knew his real estate.

In 1998, Officer Reyes bought a home in Grand Prairie.  In 2007, he bought another home, using the HUD funds, on Palo Alto Drive in Mesquite.   Officer Reyes transfered the title of the Grand Prairie house to his uncle … but he never moved from there, never changed over the utilities, and still paid the property taxes on the Grand Prairie residence.  Du-oh!!!!

Officer Reyes was caught by the federales and charged with filing a false statement with HUD (you know, where he swore he was living in the HUD house).  He pled guilty.  Now, he’s not a cop (he resigned on January 5th) and he’s facing two years in the federal pen plus a fine of $250,000.  He’s scheduled to be sentenced in April. 

Is Reyes the only one who’s seeing the HUD Program as an Investment Vehicle?

As for the HUD Program, it’s open not only to cops, but also to pre-Kindergarten through 12th grade teachers and firefighters/emergency medical technicians so they can “contribute to community revitalization” by buying homes in these “declining” communities and live there for three years. 

Now, three years (36 months) isn’t a short trip – but is anyone else thinking that Reyes’ idea of using the program as a way to get real estate cheap wasn’t that unique?  He may have not followed the requirements, but it would be interesting to see how many of these homeowners aren’t just landlords for houses they got cheap as soon as their 36 month stint is up.

Posted by Michael Lowe at 5:44 pm

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Labels: Cop Watch, Corrupt Cops


January 18th, 2010

Will the US Supreme Court Reverse Itself on Defense Examination of Crime Lab Techs?

Last week, we pondered the trustworthiness of crime labs in Texas – or more accurately, how inaccurate their results can be.  One good bit of news in all that mess is the ruling of the United States Supreme Court in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), where just this summer the Highest Court in the Land decided that criminal defense attorneys could cross-examine lab techs on their lab reports.

For many, it was shocking that defense attorneys weren’t already allowed the chance to question lab technicians on the witness stand about their lab results.  (One more example of how CSI isn’t based in reality.)  Well, here’s something even more shocking: the U.S. Supreme Court may change its mind.

That’s right.  The Supreme Court may take back the right of a defense attorney to cross-examine crime lab pros. 

Melendez-Diaz was just argued this summer.  (Interestingly, Massachusetts’ Martha Coakley argued on behalf of the prosecution – you can watch the oral arguments at Oyez.org.  Yes, this is the same Martha Coakley that is rumored to be losing her battle with Republican Scott Brown in tomorrow’s special election to fill Teddy Kennedy’s vacant Senate seat.)   

Well, the U.S. Supreme Court granted – and heard – oral argument in another case just last week:  Briscoe v. Virginia (07-11191).  Briscoe is a consolidation of two cases, and it was argued by the Virginia Solicitor General for the prosecution.  The two cases in Briscoe both dealt with ”certificates of analysis” from state crime labs without any forensic scientists taking the witness stand at the defendants’ trials.  At issue, can the prosecution present evidence of illegal drugs (which is what the certificates claimed were found) without calling the human beings who did the forensic testing? 

In these situations, criminal defense attorneys have to make a decision – should they stipulate to the certificates as being truthful, without questioning the lab techs?  Sometimes, this may be smart.  Sometimes, a good defense lawyer wants that crime lab tech on the stand.

What Will Happen to Melendez-Diaz now? 

There are critics who argue that Melendez-Diaz was a wrong decision, that it was decided too fast and without sufficient consideration of the expense and confusion that forcing forensic technicians out of their labs and into courtrooms would raise.  They’re excited that the Supreme Court will correct what they see as an error — particularly with Justice Sotomayor on the court now. 

However, there are a great many criminal defense attorneys that aren’t happy about these rumblings.  As Justice Scalia pointed out during last week’s Briscoe arguments, not putting those crime lab reports up for cross-examination is tantamount to “trial by affidavit.” 

Without examination, these untrustworthy crime lab results are merely “trial by affidavit.”

Look, there’s a reason to put a human on the stand in these situations.  Crime lab analysis is scientific in nature and there aren’t many scientists in the courtroom, usually.  Those pieces of paper that pop out of labs are already known to be unreliable, and defense attorneys MUST have the opportunity to have that crime lab technician or forensic scientist on the witness stand to explain what was done, and why the results are (or aren’t) accurate. 

We cannot bow to worship crime lab reports as inviolate.  Let us only hope that the United States Supreme Court uses Briscoe to support Melendez-Diaz, and not to erase the victory for justice that Melendez-Diaz represents.

Posted by Michael Lowe at 6:15 pm

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Labels: Court Opinions, Crime News, Orwellian Threats to Rights


January 13th, 2010

Can We Trust Texas Crime Labs? NO.

Many, many, many criminal defense attorneys in the State of Texas cast a wary eye at any test results coming out of crime labs in this state, because all too often, state forensic evidence has shown itself to be faulty.  Unlike the CSI shows on TV, all sorts of crazy stuff appears to happen in the real world of Texas forensic laboratories.

For example, just last month the Houston Chronicle reported that the fingerprint comparison unit of the Houston Police Department was being investigated for untrustworthy results, “shoddy” work, and a backlog of over 600 cases.  (We’ve already reported on how FINGERPRINTS just aren’t reliable anymore.) 

Forensic Lab Oversight Agency Efforts are Being Questioned

However, the media spotlight on the execution of an innocent man here in Texas, Cameron Todd Willingham, really fueled the fire — why wasn’t the “arson” evidence refuted as faulty back at trial time?  Suddenly, the little known Texas Forensic Science Commission (an agency established to oversee the state’s crime labs) was in the hot seat. 

And the Texas Forensic Science Commission doesn’t appear to like this much. 

Under the Texas Open Records Act, the news media can gain access to all public information held by the Texas Forensic Science Commission.  However, it’s been easier said than done since the FSC has used the lingo within that statute to try and hold onto its files, holding on hard.  The Fort Worth Star Telegram asked for information, and the FSC fought against turning stuff over to the paper. 

The Commission’s white-knuckled grip did get released a bit, after the Texas Attorney General (yep, the state’s highest attorney had to get involved) ruled that the FSC had to release some of the info that the newspaper requested, as it was indeed, “public” information.  The Fort Worth Star Telegram finally got a part of what it asked for — a week after the AG said they had to do it.

Forensic Science Commission’s Revelations Are Serious and Worrisome

What was included in the information that the FSC was forced to release?  Well, of immediate interest to those of us practicing in the Dallas area, the revelation that someone who used to work at the Southwestern Institute of Forensic Sciences was a whistleblower, telling the FSC all about faulty DNA analysis, tainted rape kits, and unreliable blood stock.  That’s right — bad forensics right here, at the Dallas crime lab.  

This is all very, very scary and should be concerning all of us.  Both the police and the state prosecutors as well as  juries and the public at large tend to bow down to Forensic Evidence as if it were, indeed, revelations from On High.  Don’t forget that the Austin Police are going so far as to use DNA evidence to track down burglars these days ….

What Can We Do?  Criminal Defense Lawyers Can Fight Back Now – Thanks to the United States Supreme Court

Meanwhile, the United States Supreme Court is getting involved.  As we’ve discussed, whether or not police lab experts can be cross-examined by criminal defense counsel was decided this summer in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).  The highest court in the land opined that it is a violation of the Confrontation Clause of the Sixth Amendment not to allow the defense attorney to examine the forensic scientist who created the analysis or report that the state has placed into evidence.

Of course, this is far from enough to solve this problem — the ability to cross-examine forensic scientists on their analysis in the witness stand means an innocent defendant has already undergone investigation, arrest, and has been forced to trial in order to vindicate himself from bad science.   We need more. 

However, between the media’s efforts and a strong defense attorney there’s more hope now than ever before.  Certainly more now that there was years back, for Cameron Todd Willingham.

Posted by Michael Lowe at 7:00 pm

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Labels: Crime News, Media Watch, Orwellian Threats to Rights


January 11th, 2010

Now, It’s a Crime in France: “Babe, You Look Fat in Those Jeans”

Apparently, things are really horrible over in France — REALLY HORRIBLE — because they are actually spending the time and money to debate, draft, and finalize into law a bit of legislation that criminalizes “psychological violence” between married couples as well as those who are cohabitating without the benefit of clergy.  Sounds like some serious domestic violence issues need addressing, right? Well, no. 

What is “psychological violence” for the French?

It’s pretty much everything you’d think might happen during a domestic dispute.  Runs the gamut between threats of physical violence, all the way over to repetitively being rude about a partner’s appearance. 

Yes, this does mean that it will be a crime in France to tell your wife that she DOES look fat in those jeans, if you say it more than once.  It’s considered verbally abusive, it’s illegal.   

The law goes into effect later this year.  No news on how the heck the French plan on enforcing this law, nor how they plan on insuring that a spouse doesn’t lie just to get their partner in trouble.  Imagine this at the crime scene:

“Officer, he said I looked fat in these jeans over and over again.  Sniff, sniff.”

“I did not.”

“Mais oui, you did.”

“Did not!”

“Oui!”

“Non!”

Yeah, those French.  They’ve got some serious criminal crises to deal with over there.

Posted by Michael Lowe at 5:38 pm

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January 6th, 2010

Cop Watch: The Mystery of Ex-Police Chief Michael Meissner – Is He a Sexual Predator or the Victim of a Vendetta?

This week, lawman and Dallas resident Michael Meissner was back in the news as the controversy surrounding his arrest and the subsequent dismissal of all charges refuses to die.

In September, while in the role of Police Chief of Little River Academy (a small town near Waco), Meissner was arrested on the charges of promotion of prostitution, possession and promotion of child pornography and sexual performance of a child. Evidence supporting the Tarrant Country charges allegedly included text messages sent by Meissner to young boys, inviting them to sex parties (whatever that means).

Meissner resigned as chief of police following his arrest.  He sat in Dallas County Jail for one week, and then all charges were dropped and he walked out the doors a free man — and he’s stayed that way.  Neither the Dallas County District Attorney nor the Tarrant County District Attorney are going to prosecute this guy. 

Meissner’s position is that this is all based on a vendetta that’s been pursued by a fellow cop, John Hoskins — who by the way, was the investigating officer that allegedly found the sex party invitation texts involving Meissner, while he investigating another law enforcement officer who was with the Combine Police Department.

Meanwhile, as the mystery continues, video of the cops executing a search warrant on Meissner’s home and the involvement of Kopbusters in the whole story is playing on YouTube.  This is the same Kopbusters who exposed the corruption in the Odessa Police Department last year,and you can watch them in the Meissner sting here: 

Posted by Michael Lowe at 6:26 pm

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Labels: Cop Watch, Corrupt Cops