This week, law enforcement officers in Paris, Texas, were videotaped in a prime example of police brutality after stopping Cornelius Gill and his friend. The video has received national coverage online (HuffPo) and on television (CBS News), which provides us all with this telling, and disturbing tale:

As Whitmire explained to the media, “You need to be selective about where you want to get caught drinking, I guess.”

Driving Drunk? Better to Get Caught in Houston than New Braunfels

State Senator Whitmire is pointing the finger at how nonsensical the current DUI system is, telling the media,  “Why would the state of Texas have a criminal-justice system in Houston that will completely allow you to have no record, and in the New Braunfels experience, you do (have a record), and then you go to Bexar County and they don’t even file on you (for) DWI the first time?”

Houston DWI Practices

Over in Houston, the Harris County District Attorney has established a DWI program where first-timers pleading guilty to a DWI offense will be given a probated sentence, as well as mandatory alcohol treatment, community service, and one of those alcohol-testing ignition lock gizmos.  Do everything right, and the first timer’s conviction disappears.  Nothing on their driving record.   

Skip over to New Braunfels, Different Story

That’s the truth of it:  drive under the influence in Harris County, and you’ll walk away with zip on your record.  Do the exact same thing in New Braunfels, about 20 miles north of San Antonio on IH 35, and you’ll have a blight on your driving record for years to come. 

You get pulled over in New Braunfels for driving while intoxicated, and you’re gonna get a DWI on your record.  Which is a big deal, of course.  (Remember this at Wurstfest in November, the huge German sausage festival held in New Braunfels every year.)  

Whitmore points to unfairness of “checkerboard” DUI system coupled with the current legal surcharges.

Whitmire’s doing two things.  He’s blowing the lid off the various DUI prosecutorial treatments that exist in different parts of the state.  And, he’s calling for the Texas Legislature to repeal the Driver Responsibility Program.

We’ve written about these surcharges before.  There not cheap, and they’re not getting paid.  Currently, for a DWI conviction, the surcharge is $1,000 a year for three years for a first conviction; $1,500 a year for the second; and $2,000 a year for any conviction with a blood-alcohol content of 0.16 or greater.  You don’t pay, and your license gets suspended. 

All that means, of course, is that people who can’t afford to pay the surcharge just drive anyway – with a suspended license – hoping they won’t get caught. 

Can Whitmire Really Change Things from the Current DWI Unfairness?

John Whitmire is trying to change things.  Can he?  Well, Whitmire is becoming a congressional spokesperson for the blatant injustices that exist in the DWI / DUI system in Texas today.  He’s also using his position as Committee Chairman to create a group of experts to come up with recommendations for a truly uniform way of dealing with suspected drunk drivers in all the various 200+ Texas Counties.

What’s really going on here is District Attorneys trying to find creative ways to deal with budget problems and a huge backlog of drunk driving cases on their books.  So, it’s really about money.  Surprise. 

Will Whitmire be bold enough to address THAT elephant in the room?  We’ll see ….

What they got instead was to witness a Fort Worth police officer Taser Michael to death when it appeared Michael might try and run away  – after the cops had sent away the EMS unit. 

That stun gun’s electric shock ran through Michael Jacobs’ body for 54 seconds.  After he fell to the ground, and had stopped breathing, the cops handcuffed him and called the ambulance to return.  By the way, Michael Jacobs was not armed.  He was just threatened to flee – to run off.  There’s no crime here, folks.

His mother and father witnessed their son’s stun gun death.  Imagine this afternoon for them.  Taking care of a mentally ill child, trying to protect him, and then watch your worst fears realized. 

Biggest Settlement Ever – From the City of Fort Worth

Yesterday, the Fort Worth City Council announced it was unanimously approving a settlement offer in the amount of $2,000,000 in the civil rights/wrongful death lawsuit filed by the parents of Michael Jacobs.  This is the biggest settlement that Fort Worth has ever paid for an death or injury caused by one of its own. 

By the way,  even though Michael Jacob’s death was clearly murder — the Tarrant County Medical Examiner ruled it a homicide — the Fort Worth Police Department cleared the police officers after their internal investigation.  And, a Tarrant County Grand Jury did not issue an indictment against the cops.

The City paid.  The cops didn’t.

What’s the DWI Surcharge? It’s Thousands of Dollars and It Covers 3 Years AFTER the DWI Conviction 

Right now, Texas drivers convicted of DWI (driving while intoxicated) as well as a couple of other violations (driving without a driver’s license, or one that’s invalid; as well as driving without insurance) must pay automatic surcharges every year, for three years from the date of conviction.

And it isn’t cheap: for a DWI conviction, the surcharge is $1,000 a year for three years for a first conviction; $1,500 a year for the second; and $2,000 a year for any conviction with a blood-alcohol content of 0.16 or greater. That’s big money, right?

People Aren’t Paying the Surcharges

It’s not news to those involved in DWI work that people aren’t paying these surcharges.  However, everyone may not know that state-wide, over $1 billion hasn’t been paid.  One billion dollars in unpaid surcharges – no wonder they’re having some hearings down in Austin.

Why aren’t people paying? 

Some can’t afford it.  Some think it’s just wrong or stupid to be asked to pay for up to three years after they’ve already been convicted.  They’ll just drive without a license rather than fork over the surcharge.

Surcharges and DWI Trial Backlogs also Impact Pending DWI Cases: Dismissals, Lesser Offenses

In the face of balloon-bursting DWI trial dockets, criminal judges and prosecutors have become creative in how to deal with drunk driver cases that are brought before them.  Judges are dismissing more cases, and lots of DWI cases are getting lesser charges — like reckless driving. 

And apparently, dismissing cases and negotiating down to lesser charges isn’t solving the DWI docket program — or the problem that there’s a $1 billion dollar account receivable on the State Budget.   You go figure which is the driving factor here.

Hearing Continues Today

Whatever the impetus, the hearing is continuing today.  According to Grits for Breakfast, most everyone there is hankering for a change.  The only ones that like things the way they are, apparently, are hospital representatives.  They want to maximize money from surcharges going to hospital trauma centers.  

Let’s watch and see what happens….

Hank Skinner says he’s innocent.  He’s asking for DNA testing to be done.  Seems there were knives and things at the scene of the crime that hold DNA evidence — but no one has ever checked that evidence against Skinner’s DNA to confirm his claim of innocence. 

Right now, there is a request pending before the United States Supreme Court, based on this evidence issue, which would get Skinner a stay.  As this is being typed, there’s no news from Washington, D.C. that Skinner’s getting a response from them. 

There’s also a request setting on Governor Rick Perry’s desk.  Skinner is asking the Governor to give him a 30 day reprieve, so this DNA testing can be done.  Again, checking the news as this post is being typed — zip from Austin.

However, there has been one bit of news:  the Ambassador of France — yep, FRANCE — has officially asked Governor Perry to grant the reprieve or just go ahead and pardon Skinner.  It gets better.  Seems Skinner is married to a French woman, and the PRESIDENT of France has also offered his support to Mrs. Skinner, Sandrine Ageorges-Skinner.   Wow.

You’d think that if the idea that an innocent man might be fixin’ to die at the hands of a Texas executioner would be enough for Governor Perry to halt things and do some DNA testing.   Here it is, lunchtime on Execution Day and we’re hearing zip.  So, maybe the fact that an entire country is asking for a double check to be done might sway things. 

Of course, they can’t vote in November.  They’re French. 

Our thoughts and prayers go to Hank Skinner, his legal team, and his family.  May God bless you all on this terrible day.

Finally, Tim Cole is Pardoned

However, on Monday something else happened.  Governor Perry signed the pardon of Timothy Cole, the first person in the State of Texas to be cleared of wrongdoing by DNA evidence after his death. 

If you follow this blog, then you’re aware that there was some problem getting here: arguments were made that the Governor had no legal right to grant this pardon, the Attorney General said so, and there was a major brouhaha before justice was done. 

What Will We Learn from the Tim Cole Tragedy?

Now that the pardon has indeed been granted, and the family of Tim Cole has achieved victory in his vindication, there are still questions that should be asked — lessons to be learned from the life of Tim Cole. 

Here are a couple:

1.  At Grits for Breakfast, there is much discussion on how many more Tim Coles are there?  How many more false convictions are on the books right now, with innocent men and women behind bars standing firm on their innocence?

It’s a good question.  With crime labs in the chaotic state they are these days, it’s debatable whether or not DNA testing can be trusted in cases pending before the court.  Who is going to undertake the process of vindication through DNA testing of folk who are already behind bars?  The Innocence Project of Texas does this — but their resources are limited, and they have to choose their cases accordingly. 

Tim Cole Lesson No. 1:  There’s a way to get innocent folk out of prison through DNA testing, but we’ve got to figure out how to do it, and who is going to pay for it – and how to secure their release through appeal or pardon once the test results are back.  Part of the expense is the judicial process AFTER the test reveals their innocence.  It’s not just a matter of taking a lab report to the prison and getting someone released. 

2.  At the Burnt Orange Report, discussion is had over Tim Cole’s case showing us once again how eyewitness identifications simply cannot be trusted as reliable evidence.  In Cole’s case, a young woman traumatized by rape picked Tim Cole in a photo lineup.  She was wrong.  The man who raped her later admitted the crime, and many years later, that victim came face to face with her perpetrator – all as part of the efforts to exonerate and free Tim Cole. 

Tim Cole Lesson 2:  Eyewitness testimony simply should not be trusted as evidence in a criminal case.  This should be absolutely paramount when it is the key piece of evidence that the State is using to put someone behind bars for any period of time, much less placing them on Death Row.  Human beings do not have trustworthy recollections of events, this has been proven time and time again.  When will the judicial system finally recognize just how flawed finger-pointing is?  Who knows.  Until they do, criminal defense attorneys must fight, and fight hard, against the probative value of any “eyewitness” — and perhaps pointing the finger at the Tim Cole case may help place this “evidence” in its proper perspective.

Didn’t matter.  Tim Cole was arrested, charged, convicted, and imprisoned for the girl’s rape.  One day, Tim Cole was a student with a future at Texas Tech University.  The next day, he was a criminal — and he never had his second chance. 

Tim Cole died from complications due to asthma, still maintaining his innocence, in 1999.  He was 39. 

Now, 11 years later, Tim Cole’s family still seeks justice on his behalf.  They want Tim Cole to be pardoned by the Governor, even if it will be posthumously.  At first, Governor Rick Perry said he couldn’t do it — that the Governor is only allowed to pardon in cases of treason or impeachment, and legally his hands were tied.   This, according to Attorney General Greg Abbott.

The Governor May Still Issue a Pardon for Tim Cole

Now, The Texas Board of Pardons and Paroles may open the way to the elusive pardon, based upon an application filed by the Innocence Project of Texas.  Included within that application is the official clearing of Tim Cole’s name by an Austin state district judge.  The Texas Board will then issue a recommendation that Cole be pardoned to Governor Perry, who has already implied he’s going to pardon Tim Cole based upon the Board’s recommendation.

The Tim Cole Act – One Good Result From This Travesty of Justice

While the Cole family hasn’t taken any compensation from the Tim Cole Act, one good thing that has resulted from their efforts to bring justice to Tim Cole has been the passage of the Tim Cole Act.  Under this law, wrongly convicted individuals are compensated by the State of Texas as follows:

1. $80,000 for each year of incarceration; and
2. $80,000 lifetime annuity (variables here on life expectancy and other things).

Condolences to the Tim Cole Family – and Congratulations, too

Continued sympathies to the family and loved ones of Tim Cole, especially his mother Ruby Session, and heartfelt congratulations on a fight well fought.  And, tip of the hat to Austin District Judge Charlie Baird (who has also served as a justice on the Texas Court of Criminal Appeals) who had the integrity and courage to issue the first posthumous DNA exoneration judgment in the state’s history.

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.

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.

Well, brace yourself.  The Houston Chronicle is reporting today that fingerprint evidence cannot be trusted.  You read that right.

According to reporter Moises Mendoza, it begins with an audit undertaken recently by Houston Police which revealed that their PD’s fingerprint experts were failing to properly analyze fingerprints.  A more serious revelation:  sometimes, they just weren’t finding fingerprints at all.  In Mendoza’s words, they were “missing fingerprints completely.” 

The expose doesn’t stop with Houston. 

Fingerprint labs across the country simply are not reliable.  According to Mendoza’s report, a UCLA law professor with expertise in fingerprint issues opines that the problem is so widespread that “[e]verything needs to change.”

Given Mendoza’s examples of injustice and ineptitude from all over the country,  it’s chilling to think how truly unreliable fingerprint evidence really is in our courtrooms today. 

Consider the following:

1.  Fingerprint analysis is not an established discipline and it has few national standards to be used by all forensic labs for confirming fingerprints.  What the Houston Police may conclude is the fingerprint of Joe Smith may be taken to the same lab in Chicago and get a different result. 

2.  It’s possible that different people may have almost identical fingerprints.  The idea that we all have unique fingerprints is not as clearcut as television script writers would lead us to believe.  And there’s just not much research out there (or in process) to figure out how close two stranger’s fingerprints might be.  

3.  Fingerprint labs are not required to have the same accreditation as other types of scientific laboratories (like those that analyze DNA, for example).  Only 10 fingerprint labs in Texas have been certified (as ASCLD-LAB).

How did this story get discovered?

When the Houston Police Department fingerprint lab took steps to become accredited, its innerworkings came under scrutiny — and it’s when this doublechecking occurs that the true failure of fingerprint labs comes to light.  Apparently, police departments across this state and across the country are working away, “analyzing” fingerprints and turning over what amounts to balderdash as “evidence” used by cops and prosecutors to arrest and prosecute citizens who may well be innocent of any wrongdoing.

Meanwhile, over in Houston, there’s big things going on at the HPD lab.  First there was a fruit-basket turnover of lab workers, and now a bunch of consultants are handling the work of the fingerprint comparison unit.  According to the Chronicle, there are also plans for a review of 6,000 HPD violent crime cases going back two years to check the accuracy, or lack thereof, in the fingerprint evidence used to convict those individuals.

Where do we go from here?

The blanket of ineptitude covering this country shows that the American public cannot trust law enforcement to police itself and get its fingerprint expertise legitimated.  Periodically, the media steps up to the plate and reports on this travesty of justice — the Houston Chronicle has done so now, the New York Times did so back in 2001. 

The true burden of insuring that fingerprints aren’t allowed to be considered as reliable in Texas courtrooms and refuting the assumption that police labs are trustworthy must lie on the shoulders of the criminal defense bar. 

In each and every case, defense attorneys must question this fingerprint evidence, with a tip of the hat in gratitude to good reporters like Moises Mendoza who are educating the public at large (and future jurors) that what you see on TV is merely wishful thinking on the part of law enforcement.  (And the cool lighting with shnazzy background music in Horatio Cane’s Miami lab isn’t accurate either, by the way.)

Thank you, Mr. Mendoza.  We look forward to your next report in this (hopefully) growing story.