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May 16th, 2012

Eyewitness Testimony and Prosecutorial Misconduct Spotlighted Again as Texas Executed Another Innocent Man: the Wrongful Prosecution of Carlos DeLuna

In what universe does anyone really believe that eyewitness testimony is reliable?  Really?  We’ve written before about how criminal defense attorneys and prosecutors alike are well aware that witnesses are notoriously unreliable in giving accurate information about a crime. For example, read our earlier post discussing a Dallas Morning News expose where the Dallas County District Attorney’s Office routinely convicted innocent men with eyewitness testimony known to be faulty.

Heck, there are lots of psychological studies done on this, and why human beings just can’t give accounts about what happened at a certain date and time as if they were video recorders or dashcams.  Because they’re not.  Still, the system allows people to take the stand and give eyewitness testimony about serious crimes, finger pointing at defendants and crying out “yes, that’s the man I saw.”

Eyewitness Testimony, Mistaken Identity, and the Execution Killing of Carlos DeLuna, an Innocent Man

Perhaps the grisly reality that this practice has resulted in the State of Texas sending an innocent man to his execution in 1989 will change things: if so, then the mistaken identity case of Carlos DeLuna may bring with it some good.  Because there’s nothing good to say about it right now.

Long ago, a woman was murdered, and we know who did it and we know who was convicted of her murder and sentenced to death for it. The only evidence that supported Carlos DeLuna’s conviction?  Eyewitness testimony.   People took the witness stand, and under oath, told that jury that Carlos DeLuna was the man that stabbed Wanda Lopez to death that day while she worked at a Corpus Christi gas station’s convenience store.

That was all it took.  A little finger-pointing.   Too bad they had the wrong guy:  Carlos Hernandez, not Carlos DeLuna, killed Wanda Lopez.

Now, Columbia Law School has set up a website and is offering a free ebook that provides details on the 5 year research project undertaken by Columbia Law Professor James Liebman and his team of students.   You can check out their website here.  There are lots of very interesting interviews to watch on the site, including:

Eddie Garza, Corpus Christi Police Detective: While the prosecutor in DeLuna’s case said that Carlos Hernandez—the man DeLuna said was the actual killer—was a “phantom,” evidence uncovered years later shows not only that he existed, but that he was well-known to police and prosecutors at the time and had a long history of violent crimes.
Carroll Pickett, Texas Death House Chaplain: Even at the midnight hour, when there was nothing left to lose and the Death House Chaplain heard confessions from most of the other 95 inmates he ushered to their deaths, DeLuna said, “I didn’t do it.”

You can read their free ebook here. Or download it in pdf format or order a hard print copy, if you prefer. Columbia Law is making every effort to get this research circulated to as many folk as possible – and that is great.  Lawyers please note that this ebook is also Issue 3 of Volume 43 of the Columbia Human Rights Law Review, entitled “Los Tocayos Carlos,” by James S. Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White, and Daniel Zharkovsky (43 Colum. Hum. Rts. L. Rev. 711 (2012)).

Prosecutorial Misconduct?  You Betcha.

Reading through the compilation of the Columbia research team and you’ll find not only a reliance on obviously untrustworthy eyewitness testimony (witnesses who point the finger only after they’ve seen DeLuna cuffed and setting in the back of a police car shouldn’t be relied upon for accuracy here), but you’ll also find police looking the other way when evidence pointed away from DeLuna being their man as well as, surprise surprise, prosecutorial misconduct in the matter.

Prosecutors did many bad things in the Carlos DeLuna case. Things like not turning over evidence to the defense that would clear him (exonerating evidence).  Things like telling the jury that  Carlos Hernandez, was just a ghost (“phantom”) of Carlos DeLuna’s imagination when DeLuna said that he knew Carlos Hernandez to be the true killer (having seen Hernandez go into the store that night) — all while the prosecutors not only knew that Carlos Hernandez was a real man and no ghost, but that he had a history of being violent and using a knife in assaults on people.  (Hernandez was later convicted for murdering another woman and repeatedly confessed that he was the man who had killed Wanda Lopez.)

So, what happens now?  Bet that not too many Texas prosecutors are losing sleep over this – with the way things are right now, they must feel very, very safe from accountability.

Posted by Michael Lowe at 12:44 pm

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Labels: Cop Watch, Corrupt Cops, Death Row, Orwellian Threats to Rights


April 25th, 2012

Texas Police Surveillance: Cameras Are Watching You While Police DashCams Aren’t Watching the Police As Much (Because the Cops Don’t Like the Discipline Results)

Technological advances are being used by law enforcement, they always have been.  Watch old movies or classic television shows and you can see innovations in communications and monitoring devices making their way into police departments and law enforcement agencies.  It’s to be expected, right?

So, no one should be very surprised to learn that lots of surveillance gizmos are going to be watching people without their knowledge at the Main St. Fort Worth Arts Festival this month. They’ve got cameras operated by the police department, the water utility, and  the public works department along with other branches of law enforcement. They even have police officers on the ground wired with their own little surveillance devices.

In fact, reports are that the City of Fort Worth alone has spent over $30 million in the past seven years on surveillance stuff.  Thirty Million Dollars.

There are plans for Fort Worth (and this goes for other law enforcement agencies, too – Fort Worth isn’t a maverick here) to connect its camera network with other surveillance networks.  Places like hospitals, campuses, and the like will soon all web together so that you and other members of the public can all be monitored.

Without your being aware of being watched.  Feel safer?

Of course, Fort Worth police are not taking any bows: they claim they’re just doing what most every metropolitan police department is doing – pointing to surveillance monitoring already in use at the Texas Motor Speedway and the Dallas Cowboys Stadium.  Surveillance is just the next step in crime fighting.

Don’t worry about your civil rights, they say.  The police just want to keep everyone safe.

Camera Monitoring of Police Officers Is Halted:  Dallas Cops Being Disciplined Too Much

Meanwhile, over at the Dallas Police Department, there’s been some changes to their camera surveillance too:  seems that Dallas police officers complained so much about having the cameras on them that the Dallas Police Department have STOPPED MONITORING OF the videocams that have been recording the actions of police officers on the job.

You know, police videocams that catch bad acts like this one.

Seems that the police officers have won their argument that these pesky dash-cams in their patrol cars are resulting in too many disciplinary actions being filed against them.

The Irony in Texas:  Public Gets Watched More While the Police Get Watched Less

So, here in Texas right now we’ve got more cameras being put up everywhere — without the public being informed where the cameras are located or who is watching them through those cameras (and for what reason) — at the same time that cameras placed in police cars are being slammed as capturing too much bad stuff and cops aren’t happy at being disciplined for things like speeding or turning off their video cams during pursuits or officer-assist calls.

Ironic, isn’t it?  There’s more.

Austin Audio Captures Cop Killing Cisco the Dog

Consider this:  in Austin there was a recent incident where an Austin Police Department squad car pulled up to a man’s home while the man was in his backyard, playing Frisbee with his dog, a blue heeler named Cisco.  The police officer got out of his car, and when he approached the man, Cisco – as any good dog would – ran to bark at the stranger.

The cop shot the dog.  That’s right.  Shot Cisco. It was caught on audiotape (don’t know if there is a video).  The man can be heard crying out, “why have you shot my dog?”  to which the cop continued to point his gun at the man.

Now, problems abound here not the least of which is that the cop HAD THE WRONG ADDRESS. He was trying to track down a suspect but the man in this story was a total innocent.

Think about this story the next time you’re out in your back yard, playing with your kids or your pets.  Think about the audio-cam being the only thing in the Austin story to support the innocent citizen’s claims of what the heck happened that afternoon.

Read the comments to this newstory of the event and learn what other Austinites think about their law enforcement – how much they trust their police officers.   (Not much.) Or just join the growing number of folk who are demanding Justice for Cisco.

>And then think some more about the irony that while they are aiming more camera lens at you, they’re not watching the cops as much now, because the cops don’t like it.

Posted by Michael Lowe at 11:34 am

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


April 11th, 2012

Bait Cars Okayed by Dallas City Council, Dallas Police Chief Gets $3 Million to Trap Thieves: Who’s Creating the Crime Here? Aren’t Bait Cars Entrapment And Illegal Under Texas Penal Code?

Dallas Police Chief David Brown went before the Dallas City Council last week and got the City Council’s okay to spend lots of money to buy things for the Dallas Police Department: items Chief Brown labels necessities in crime fighting but what many are concerned amount to Big Brother activities that will result in illegal entrapment under state and federal law.

Here’s what is happening in Dallas: the Dallas Police Department is going to spend $3,000,000.00 (that’s big money, right?) to buy lots of stuff like hidden cameras, global positioning system (GPS) trackers, license plate readers, and even cars which will be used as bait to entice individuals to steal the tempting toys like laptops (also purchased in the budget) from inside these vehicles.  You may have heard about this new police tactic or seen it on television.

It’s commonly referred to as using “bait cars” to fight crime.  Bait Cars.  Think about it.

Here’s the entrapment statute as it appears in the Texas Penal Code:

Sec. 8.06. ENTRAPMENT. (a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Dallas Police Chief Brown Plans To Send Bait Cars Into Southern Dallas Communities and Targeted Areas

You can almost feel the glee as the Dallas Police implement their Big Plan, spending the $3 million to target not just any part of Dallas, but specific areas:  27 locations that the police consider to be high crime areas as well as 8 specific parts of south Dallas (which have been flagged by the City of Dallas for economic redevelopment campaigns).

Right now, it’s reported that the police will be placing 16 bait cars around these specific geographic locations, filled with goodies, and monitored by cameras which will videotape those trying to grab the goodies, i.e., future car thieves.

Let’s read part of that Texas Penal Code statute again:

It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense.


Dallas Police Chief Wants to Do Even More Baiting

You’d think that the millions of dollars being spent here would be a big deal – but it’s not enough for the Dallas Police Chief.  He wants even more money because he wants to bait traps not just in his current targeted areas (which number around 10) but throughout the city, in around 35 different targeted locations.

And he’s looking around for private money to help him buy more technology, more temptations, and more cars from private donations.

Now, all this is being done under the big banner of making Dallas Safer. However, if you’ve got the police power being used to set up crimes just so they can go in and bust folk, then how safe are you really?

Consider the following from the United States Supreme Court in Sherman v. United States, 356 US 369, 380 (1958)(highlighting added):

The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced.

As Mr. Justice Holmes said in Olmstead v. United States, 277 U. S. 438, 470 (dissenting), in another connection, “It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. . . . [F]or my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.”

Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognized jurisdiction to formulate and apply “proper standards for the enforcement of the federal criminal law in the federal courts,” McNabb v. United States, 318 U. S. 332, 341, an obligation that goes beyond the conviction of the particular defendant before the court.

Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.

Posted by Michael Lowe at 12:07 pm

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Labels: Cop Watch, Orwellian Threats to Rights


March 14th, 2012

Texas Police Corruption: Texas Rangers Arrest Chief of Police, Rest of Police Department Out the Door But Covington Still Very Afraid

A stone’s throw as the crow flies from Fort Worth is the tiny Texas town of Covington, and if you follow along Interstate 35 from downtown CowTown you’ll be in the heart of Covington in around 45 minutes.  So, this story isn’t coming out of some backwoods, rural spot that’s living without the knowledge or influence of modern culture and its conveniences … and its laws.

Covington Police Chief Arrested by Texas Rangers Last Friday

On March 9, 2012, (just last Friday) the Texas Rangers swooped into Covington and arrested its Chief of Police, Wade Laurence, on a felony charge under the Texas Controlled Substances Act Section 481.129, for using a fraudulent prescription to obtain controlled substances.  He was handcuffed, taken to jail, had his mugshot taken, and then placed under a $20,000 bond.

The same day, the Covington City Council held a meeting and fired Wade Laurence as their Chief of Police.

Wickedness in High Places: Rogue Police in Covington, Texas

Covington is a small town, officially only around 250 people live there.  So most everyone knows what’s up … but the official allegations have sprouted not from back-fence gossip but from accusations coming from Laurence’s fellow police officers.  Like former Police Chief Dowell Missildine and former Police Officer Kayla Richardson, who is being heralded as a whistle-blower for bringing some bad things to the attention of authorities, as well as telling Missildine things were becoming so serious that she was afraid for her life in some kind of retaliation.

Kayla Richardson is the brave soul who took this situation to the Texas Rangers, after she learned that the police evidence locker had drugs missing from its inventory and the only Covington Police Department member who wouldn’t take a lie detector test was its Chief of Police, Wade Laurence.  Richardson saw that nothing was going to happen even after it was known that drugs had disappeared from the police department’s drug locker, and this riled her up enough that she went to the Texas Rangers for help.

Covington Is Afraid Now That Bad Cop is Free on Bond

Meanwhile, with a low bond, it didn’t take long for Wade Laurence to get released.  So, this week, he’s free as a bird while he awaits trial on the felony charge (and maybe other investigations, too).

Covington City Council member Marty Smith has told the media that the community is terrified of these rogue police — which include not only ex-Chief Laurence but a hand full of men who worked as cops alongside him. People in the town are scared of what felonies are yet to be committed in their community by these evildoers.

According to reports of the Texas Rangers as well as media coverage, Laurence has had such an iron hand on this small Texas town that people were afraid of their own police force.  Individuals are coming forward telling of things like being threatened with arrest on trumped-up charges as well as having their property destroyed (windshields busted, etc.) in a textbook tale of bullying techniques by out of control Powers that Be.

Texas Police Out of Control: Is Covington All That Unique? Nope.

The ability of a small Texas community’s police force to become corrupt and exceed the police powers entrusted to it seems to be not only readily available to towns and hamlets across the state …  all too often, it’s become obvious that ne’er do wells are taking advantage of this chance to rule and reign as they wish, despite the laws they are sworn to uphold.

Behind the badges of places like Covington are other locales we’ve monitored here – like police departments in Aransas Pass, Rosebud, and Cleveland, among others – it’s not just a Bad Apple but an entire system that has broken down as officers entrusted with the public good fall prey to the profits to be made from guns and drugs.

In covering the Covington story, Republic magazine is also reporting on abuses in the Texas town of Tenaha and Shelby County, as well.  Seems bad things are happening there almost simultaneously with the bad stuff up near Fort Worth.

The reality of criminal justice in the State of Texas today is that a police uniform does not necessarily carry with it the guarantee of integrity and honesty that many members of the public assume it does.   Corruption exists, and it is wise to be wary.

Posted by Michael Lowe at 1:21 pm

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


February 29th, 2012

Fort Worth Police Department Cellphone Tracking to Create Probable Cause? Cops Promise They Won’t Do It, Many are Skeptical

Police departments are supposed to get search warrants, and therefore a judge’s review and approval of their actions, before they start tracking the actions of a citizen in this country. (For details, read our website resource article on search and seizure.) However, technology has advanced to the point where it is darn easy to track someone via their cellphone, and now a Texas Police Department has purchased a cellphone tracking system.

It seems the Fort Worth Police Department bought a KingFish System awhile back, which is a cellphone tracking system that you can tote around. They spent around $184,000 for the thing.

With this gizmo, Fort Worth cops can take this KingFish to wherever they want and use it to monitor folk without their knowledge. Key: they can do this without the inconvenience of that judge and his review of things before someone’s privacy is invaded. Judges can be so picky, after all.

Paranoia? Nope. The suggestion is that the Fort Worth cops intend on doing exact that — track you or your kid or your friend with their KingFish System without anyone’s knowledge or approval comes from a City of Fort Worth Internal Memo itself.

Read the language of that memorandum and it sure sounds like Fort Worth police are planning on circumventing the search warrant (which is a constitutionally protected requirement) as they track people via their cellphones:

The police department will use the KingFish System, a portable cellphone tracking system, to assist in locating, identifying, developing probable cause and apprehending priority offenders….

Probable Cause Comes First, Not As an Afterthought

Here’s the thing: that language about the police using this gizmo in “… developing probable cause….” is scary, scary stuff. Big Brother kind of scary stuff.

Legally, we are all protected under state and federal law from the police power being exercised as it wishes. Police must act within specifically defined boundaries, and respect our freedom.

That’s why judges okay the police tracking an individual’s actions in a search warrant: the police are already supposed to have “probable cause” that evildoing is going on in order to support their request to step over that legally protected privacy right of the targeted person.

Many Are Questioning What the Fort Worth Police Department is Doing with Their Cellphone Tracking System

Already, the ACLU (American Civil Liberties Union) of Texas is checking out what is going on here.  Expect them to file a lawsuit if need be.

News media are investigating the situation, as well.  It’s a big deal when law enforcement decides to dance around probable cause, after all.  Bloggers are watching, too.  Like us.  Like Grits for Breakfast.

Meanwhile, individuals should be wary if they are being investigated or are arrested in the Fort Worth area:  have they been a victim of the KingFish version of “probable cause”?

It’s a valid question for everyone in Fort Worth with a cellphone to ask.  Problem is: how would you know, until the cops had built their sandcastle of a case around you?  If you are reading this in the Fort Worth area,  via your cellphone  — does the Fort Worth Police Department know where you are, what you’re doing? How would you know?

Posted by Michael Lowe at 11:14 am

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Labels: Cop Watch, Orwellian Threats to Rights


February 22nd, 2012

Fort Worth Police Have Second Man Die in Their Custody In Six Weeks: Death After Custody Continuing Problem Here in Texas

On January 15, 2012, Daniel Guerra died while in the custody and control of the Fort Worth Police Department.  He was 24 years old.  On February 14, 2012, Larry Sternberg, 45 years old, also died while in the custody and control of the Fort Worth Police Department.

Two men dying within one month’s time?  Maybe someone needs to be checking into how things are being handled over in Tarrant County.

Daniel Guerra, High on Meth, Died After Stun Gun Zap

Daniel Guerra already has a finding from the Tarrant County Medical Examiner:  even though he was zapped by a Forth Worth police officer’s Taser, and it’s recognized around the world that stun guns kill people, the medical examiner is ruling that Guerra died from “methamphetamine intoxication due to incautious consumption of a toxic drug.”

Guerra’s path crossed that of the Forth Worth Police Department on January 13, 2012, when he tried to race a patrol car on US 287 and lost the car chase. Seems there were Fort Worth police officers checking out a Fort Worth hotel with a reputation for illegal drug deals,  and when they ran the license plates on Guerra’s ride and determined that it had an expired registration, they hit their bright lights to pull Guerra over.

Guerra opted to drive fast and try to get away from the officers, zipping along in his Cadillac, but he was foiled in his getaway on US 287 after the police threw spike strips over the lanes.  Guerra wasn’t done yet — according to police, shots were fired from the Cadillac and there was a struggle after Guerra was out of the car, resulting in the police using a Taser as they took Guerra into police custody.

According to police reports, Guerra collapsed there in the patrol car and while the officers did perform CPR (cardiopulmonary resuscitation), Guerra could not be revived.  A female passenger in the Cadillac allegedly told the police that Guerra had taken a big amount of meth during their car chase.

Larry Sternberg Died From Beating Injuries

Larry Sternberg died six weeks after he sustained injuries from being beaten and severely kicked while in the Fort Worth drunk tank downtown.   Sternberg apparently fought hard for over a month before he succumbed to his injuries.

Last month, Sternberg was taken to John Peter Smith Hospital after law enforcement officials discovered the scene, Sternberg bloody and unconscious, and he remained there until his death.  Sternberg had been busted on a public intoxication charge and the media is reporting that JPS Hospital employees, according to police reports, say the man suffered FOUR kicks to the face after he was unconscious – which caused bone fractures and internal bleeding.

Death and Injury of Citizens After Being Taken Into Custody a Continuing Problem in the State of Texas

Before anyone starts dismissing these two incidents involving the same police department within 30 days of each other, consider the following prior cases of folk dying or being injured after being taken into police custody in this state that we have been monitoring here, including:

These are just posts of events that have happened where people died or were injured while in custody in local jails around the State of Texas in the past few months.  It’s looking like there’s a new story on someone being injured or killed while in the custody of Texas law enforcement each and every month.  That’s serious.

Posted by Michael Lowe at 8:59 am

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Labels: Cop Watch, Jail Watch


January 25th, 2012

Texas Cop Investigated for Lewdness and Child Pornography by Texas Rangers

News reports are popping up across the state today about an officer with years of service at the Wylie Police Department who just got put on paid administrative leave after allegations were made against him involving lewd behavior and child pornography.   The patrolman has voluntarily turned over his home computer to the Texas Rangers, who are investigating, and undoubtedly this story is going to get bigger as the contents of that computer are revealed.  (We’re not sharing his name now because he hasn’t been arrested yet.)

Already, it is known that there are photographs on that home PC that are pornographic: images of the Wylie police officer having sex with an unidentified woman; a nude woman posing with his Wylie Police Department badge, the list goes on.

How did this discovered?

Seems that someone took images from the Wylie cop’s home computer and sent them to everyone on his email address list, including someone at the Wylie Police Department’s Powers That Be.  That happened Monday night.  Not clear how fast the Texas Rangers were called but it’s Wednesday morning and they’re definitely on the job.  (As are the Garland Police Department since the officer resides in Garland, and therefore that may be where crimes actually occurred.)

Why are the Rangers jumping in so fast?  Seems some of these images aren’t just pornographic — they are CHILD pornography.

Within 48 hours of the mass email mailing, the Wylie officer was suspended by the Wylie Police Department and while they were at it, the Wylie Police Department also placed two employees on leave that are shown in these photos:  a female dispatcher and another department employee.

Lewd Behavior is a Misdemeanor and Child Pornography is a Felony

It’s serious enough for a Texas police officer to be engaged in pornography on his home computer: that can constitute the crime of lewd behavior under the Texas Penal Code, but to have child pornography on his PC is shocking.  After all, not only are police officers under oath to protect and serve, they are also well aware of the crimes defined by statutes in this state, no excuses here:

Texas Penal Code Section 21.07: PUBLIC LEWDNESS

a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his:

(1)  act of sexual intercourse;

(2)  act of deviate sexual intercourse;

(3)  act of sexual contact; or

(4)  act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.

(b)  An offense under this section is a Class A misdemeanor.

It is much more serious for this member of Texas law enforcement to be involved in child pornography; this is a felony in the Texas Penal Code (and may constitute a federal crime as well):

Texas Penal Code Sec. 43.26:  POSSESSION OR PROMOTION OF CHILD PORNOGRAPHY.

(a) A person commits an offense if:

(1) the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct; and

(2) the person knows that the material depicts the child as described by Subdivision (1).

(b) In this section:

(1) “Promote” has the meaning assigned by Section 43.25.

(2) “Sexual conduct” has the meaning assigned by Section 43.25.

(3) “Visual material” means:

(A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or

(B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.

(c) The affirmative defenses provided by Section 43.25(f) also apply to a prosecution under this section.

(d) An offense under Subsection (a) is a felony of the third degree.

(e) A person commits an offense if:

(1) the person knowingly or intentionally promotes or possesses with intent to promote material described by Subsection (a)(1); and

(2) the person knows that the material depicts the child as described by Subsection (a)(1).

(f) A person who possesses visual material that contains six or more identical visual depictions of a child as described by Subsection (a)(1) is presumed to possess the material with the intent to promote the material.

(g) An offense under Subsection (e) is a felony of the second degree.

Posted by Michael Lowe at 11:03 am

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Labels: Cop Watch, Corrupt Cops


January 18th, 2012

Houston District Attorney Faces Grand Jury As Truth About Inaccuracy in Tests for Drunk Driving Is Exposed in BAT Van Scandal

Here in Texas, law enforcement’s excitement over their Drunk Driving campaigns has already become pretty darn scary what with the threat to due process rights of every citizen on the road with the current 24/7 No Refusal campaigns.  To read more about them, and growing national concern over their threats to our constitutional rights, check out our earlier post for details.

Breath Tests for DWI Aren’t Reliable; BAT Vans Compound the Likelihood of Error

However, the use of roaming mobile breath test labs on Texas roadways is taking things to a higher level of threat.  These “BAT Vans” look like recreational vehicles with police department logos on the outside; on the inside, they are set up as laboratories with seats for medical technicians, cops, or nurses – as well as the lab equipment to perform drunk driving tests on the road.  To learn all about these vehicles, just visit the website for Brown Specialty Vehicles which makes and sells these things around the country.

It’s well known that these vans are conducting tests that can be flat out wrong.  Breath tests aren’t all that reliable, no matter how law enforcement pretends that they are.  However, the BAT Vans add another level of error to the whole thing:  seems the vans themselves can mess with the test results, because of electrical issues and such.  For more on how these BAT Vans can taint test results, read this post by Grits for Breakfast.

HPD Crime Lab Tech Supervisors Quit Over BAT Van Problems

Or read the testimony from this past summer, when former Houston Police Department Crime Lab worker Amanda Culbertson testified under oath that she – along with TWO OTHER technical supervisors quit their jobs (in THIS ECONOMY) because no one was respecting their complaints about serious problems with the BAT vans and their Breathalyzer results.  Culbertson explained that there were electrical, mechanical and temperature issues which might influence the test results.

Back then, Harris County District Attorney Patricia Lykos issued a media statement in response to Culbertson’s testimony: “We sponsor the crime laboratory’s scientific evidence in our prosecutions. Accordingly, we have a responsibility to ensure that the evidence was collected and analyzed properly.”

So did the Houston Police Department: “At this time, HPD is not aware of any tests being compromised due to temperatures within the BAT vans. We were alerted to past air conditioning problems within the BAT vans and have worked to correct the issue by installing rear air conditioning units in the vans. Additionally, all officers operating the BAT vans have been trained on the proper procedures to allow for air conditioners to work properly. Vans not kept at the proper temperature settings do not cause the instruments to give false readings. Instead, the instruments would not give a reading at all, thus preventing any invalid tests.”

The BAT Vans Controversy in DWI Cases – Harris County District Attorney in the Hot Seat as DA’s Office May Face Criminal Charges

Those statements may come back to haunt them now.  First, a Harris County judge heard a challenge to a Driving While Intoxicated (DWI) conviction and agreed with the defense attorney.  The judge overturned the DWI conviction because it had been based upon a BAT van lab result – and the judge found that both the Houston Police Department and the Harris County District Attorney did not reveal information about these BAT Vans to the defense.

Seems that the District Attorney’s Office and the Houston cops knew about the problems with these BAT vans and they didn’t bother telling anyone.  Like the defendant in the drunk driving case where the BAT Van was being used to convict him of driving drunk.

What made the Houston criminal court judge think there was a secret about the BAT Vans that the police and the prosecutors both knew about?  Well, seems there were emails.  And apparently other legal documents.

Grand Jury Probe Into Harris County District Attorney and HPD

A grand jury investigation began.  A special prosecutor was appointed.  And yes, the grand jury is investigating possible criminal acts by the District Attorney’s Office of Harris County.

Things got messy fast.  By November, two of the top deputies in the DA’s Office and two court reporters were subpoenaed before the Grand Jury to explain how secret grand jury testimony transcripts somehow got into their hands.

Here’s the deal: instead of hiding all this stuff, if there is a problem with the BAT Vans then the District Attorney’s Office is legally required to reveal the problem.  Their goal is suppose to be justice after all, not a winning conviction record.

The question soon became not IF there was a shared secret, but when did the police and the DA know about the BAT Van problems.  Which is why this week, Houston District Attorney Pat Lycos had to appear before the Harris County Grand Jury to testify about when she knew and what she knew about these BAT vans.

There’s more than one serious issue here.  Sneaky circumvention of a defendant’s right to a fair trial, sure.  Ignoring the oath to seek justice, sure.  However, there’s one more thing that should be important to all of us:  law enforcement has RVs roaming around, pulling people over for breath tests that are known to give flaky results … and that’s been okay over in Houston, apparently.  Couple that with the growing popularity of the 24/7 No Refusal campaigns, and you have to wonder about how endangered our due process rights are these days.

Posted by Michael Lowe at 3:01 pm

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


December 28th, 2011

Texas Cops Shooting Citizens All Over the State This Month: Excessive Force? Overstressed Officers? Three Dead From Police-Issued Bullets.

Texas law enforcement is getting lots of media attention this month, as police officers all across the state have used their officially issued weapons to kill citizens.  Excessive force?  You make the call:

Houston Police Officer Shoots Man to Death on Christmas Night – Witnesses Tell Different Story From Official Police Version

In Houston, a news story is bubbling up about a Houston police officer that is on administrative leave while the Powers that Be investigate how and why Curtis Hampton — a veteran Houston cop, with 13 years on the force — shot a man to death on the side of the road on Christmas Night (December 26).   Seems that the man was speeding along in his car, crashed into another vehicle, and then plowed into a ditch.  The official report out of Houston is that there was a struggle between the man and the cop as the man was being escorted to the patrol car, and the gun was used because the officer “feared for his life.”

However, there were witnesses to the killing – people who initially became interested in what was happening because they heard the car crash – and they are reporting that the officer overreacted.  No big fight, no imminent threat of harm.

Corpus Christi Killing by Cop’s Gun Getting National Attention

The national news is monitoring a story out of Corpus Christi, where a police officer took his pistol and hunted down his common law wife – finding her huddling inside a closet at her mother’s home – shooting her to death.  Seems the officer was employed by the police department of Alice, Texas, and instead of going to work his shift that Monday morning, Jose Gonzales III opted to dress in his Alice Police Department uniform, arm himself both with Alice Police Department pistols and rifles and then start his trek to track down his estranged wife.  Leslie Morin was shot multiple times in front of her mother and her children by the Alice cop.

Then, Officer Gonzales went back home, taking his son with him.  Around an hour later, he was arrested without incident.

Last Night, Dallas Cop Shoots and Kills Passenger in Car

Here in Dallas, on December 28, 2011, a man was shot to death by a Dallas Police Officer as he sat in a car. According to the Dallas cop, the shooting was necessary because the passenger was reaching for a pistol, there in the car, so the police officer feared for his life and shot the passenger. Details are still coming out, but it seems that a neighbor called the cops because of a “suspicious vehicle” parked in the area, and when the police officer pulled up to check out the car, the shooting occurred.

Posted by Michael Lowe at 12:57 pm

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Labels: Cop Watch, Crime News


December 14th, 2011

Texas’ “No Refusal” DWI Campaign In National Spotlight As People Start to Realize It’s Violating Constitutional Civil Rights

Texas criminal defense attorneys hopefully will find a benefit from the growing national media attention to the state’s No Refusal campaigns that attempt to target drunk driving dangers but in doing so, endanger basic civil rights – something that every American should know.

When rights are taken from you, there’s usually no advance invitation sent – the quieter the grab, the better.  Which is why we’ve been monitoring the No Refusal campaign here and why it’s good to see the national media taking note of what is happening here in Texas.

In this week’s Wall Street Journal, there is a lengthy discussion of Texas’ “no refusal” campaign, which the WSJ has labelled a “blood-test policy.” Included in the WSJ article is an overview of how No Refusal campaigns are getting to be as popular as the Kardashians here in Texas as well as gaining in popularity in other states, like Florida and Louisiana and Illinois.

Over at Fox News, there’s also some media coverage of Texas’ No Refusal campaign.   Included there, some discussion of the basic constitutional issues that the No Refusal campaign brings with it.

Here in Dallas,  people are taking notice.  In D Magazine’s FrontBurner column this past Tuesday, Michael Mooney pondered what the No Refusal campaign really means to everyone, and ends his article with the realization that allowing the police power to take your blood out of your body AGAINST YOUR WILL is “terrifying.”

That’s right, Mr. Mooney – it is terrifying.  People need to get what is going on here.

Texas DWI No Refusal Campaign Violates Constitutional Rights.

Let’s consider what is happening down in San Antonio because we know that Dallas and Fort Worth and Houston and every other district attorney in this state is watching San Antonio’s head prosecutor Susan Reed to see how well her No Refusal prototype works out.   Reed has implemented a No Refusal Campaign in Bexar County not just for holidays or three-day weekends, but every single day of the week.

In Bexar County right now, the No Refusal Campaign is in place 24/7/365.  It’s been okayed and funded by the State of Texas’ Department of Transportation grant of $1.4 million, by the way.

This means that any person who is pulled over by law enforcment in the San Antonio area can be forced to have their blood drawn – and the traditional hurdle of having a hearing or some kind of argument against that search and seizure is out the window as judges are on standby to rubber stamp search warrants allowing the blood to be drawn.

It’s a standardized procedure in the Alamo City right now.  Get pulled over, and refuse to take a breath test, and the San Antonio law enforcement will put you in their vehicle and drive you down to the nearest magistrate’s office.  There’s a judge at the ready to sign a search warrant to allow the blood to be taken from you, and that warrant gets signed.  (Where are your arguments before that judge? Good question.)

Next,  the blood is taken by a nurse and then it gets taken over to the medical examiner so the blood alcohol content can be determined in the examiner’s crime lab.  If the BAC meets or exceeds the legal limit for intoxication, then you’re arrested for Driving While Intoxicated.

However, this should not be the whole story.  Consider these unknowns:

  • We are not aware of how many times those warrants are requested and not signed.  (If there’s ever a refusal.)
  • No reports on how often the tests come back with results that show the BAC has not met the legal limits.  (Think about that one.)
  • No reports on whether or not certain cops are doing this more often than others.  (These campaigns give cops lots of power, don’t they?)
  • No reports on whether or not certain classes of folk are getting pulled over more often than others. (If you are African American, are you more likely to be stopped?)

The federal constitution protects against unreasonable search and seizure.  It also protects our due process rights.  Police powers must be monitored and curtailed in order for freedom to be maintained.

For more information, consider:

Ten Things To Know In Case Your Car Is Pulled Over in Texas

What Is Legal Intoxication in Texas

Defenses to Blood Samples (Contamination, Legal Blood vs Medical Blood,  Impact of Medications, etc.)

Posted by Michael Lowe at 11:34 am

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Labels: Cop Watch, DA Watch, Media Watch, Orwellian Threats to Rights


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