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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


January 11th, 2012

Someone Did Very Bad Things, But Texas Prosecutor in Morton Case Claims It’s Morton Attorneys Who Are Guilty of Misconduct. Really?

Back in October 2011, the Texas Court of Criminal Appeals issued its opinion in the case of Michael Morton, releasing Mr. Morton as a free man – due in no small part to the unflagging efforts of the Innocence Project.  For details on that case, and to read the court’s opinion, check out our earlier post.

Prosecutor Points Finger at Lawyers Acting For Michael Morton of Underhanded Dealings

Two days ago, the prosecutor at Michael Morton’s criminal trial, former Williamson County Prosecutor Ken Anderson, filed his official brief in the formal court record where he claims that Mr. Morton’s attorneys have acted in a down and dirty manner in their accusations against Anderson.

According to Anderson’s brief, the Morton attorneys have lied, they’ve not been fully forthcoming with known facts, and they’ve spun their description of what is in the trial court transcripts and evidence filings. That’s right:  Morton’s DNA proved him innocent, and now Anderson is another victim of injustice.

Anderson is claiming that Morton’s lawyers zipped past the line of zealous representation into evildoing here, all in order to accuse Anderson, as the prosecutor, of holding back evidence that if introduced at trial might well have meant Morton, as an innocent man, would not have been unjustly incarcerated.

Judge Sid Harle and the Court of Inquiry

Ken Anderson didn’t throw the first punch here; his brief with its exhibits is filed in response to a report presented to the Honorable Sid Harle, a district court judge out of San Antonio who was appointed by Texas Supreme Court Chief Justice Wallace Jefferson to preside over The State of Texas v. Michael Morton.  The report was filed by Michael Morton’s lawyers, and within the report were allegations that Ken Anderson, while a Williamson County prosecutor in the Morton criminal trial, undertook actions that necessitate a Court of Inquiry under the Texas Code of Criminal Procedure.

If Judge Harle goes forward with the inquiry, it will be a Major Big Deal – these things just don’t happen very often (read that EVER).  Experts are calling the fact that Morton’s even requesting the darn thing an “extraordinary legal event.”

As for what was hidden at trial and for which the Morton attorneys are requesting Harle to investigate the prosecution’s action, read our earlier post detailing the evidence that never made it to the criminal trial courtroom.   Smells real fishy, doesn’t it?

Gets worse: after Morton was freed, investigations into possible prosecutorial misconduct heated up and among other things, as reported to Judge Harle in the December 19, 2011, request for a formal inquiry, Ken Anderson reportedly did sneaky stuff like moving to bar Morton’s son from testifying at trial, and also taking steps to keep the defense from getting ahold of an investigator’s notes.

Read the entire Anderson brief online here.

As for the likelihood that this thing – this Court of Inquiry – is going to have a real life, check out Grits for Breakfast’s take on things.  One of Grits‘ good points — if a Texas judge and a Texas prosecutor can be having an affair during a murder trial and not get disciplined in any way for it, even the United States Supreme Court did nothing, then who’s taking bets on this case?

To recollect that love story, read our post here.

Posted by Michael Lowe at 11:54 am

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


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


November 16th, 2011

Prosecutorial Misconduct is a Big, Big Problem in Texas – Here Are Just a Few Examples

Call them prosecutors, district attorneys, attorneys general, or state attorneys: attorneys representing the government in criminal cases have a different role than compiling a winning trial record, or at least that’s what we all assume. These lawyers are in it not for money or for power, but for justice, right?  No. Recently, it’s become all too obvious that this is not the truth.

The truth is that prosecutorial misconduct is a big, big problem.

It’s a huge problem here in Texas, and as we’ve learned this week in the Ray Gricar / Penn State scandal, it’s also a big problem in other parts of the country. (To read my post on Gricar’s failure to prosecute, go here).

This week, the Dallas Morning News published an editorial that we should all read and consider. Entitled “Editorial: How to curb rogue prosecutors,” four recent examples are given, where prosecutors closed their eyes and ears to justice and instead, messed with evidence — evidence that has now cleared convicted individuals, evidence that the state held even though that evidence might help the defense.

The four examples?

Michael Morton (read our earlier post here on Morton’s case).  Here, the district attorney held back evidence that pointed to another person as being the one who killed Morton’s wife as Morton was convicted and served 25 years in a Texas prison before legal battles succeeded in getting his release.

Anthony Graves, who served 18 years in a Texas prison – part of that on Texas Death Row – after the prosecutor jerked around with witness testimony to get Graves convicted for killing 6 people.  Graves was exonerated and freed last fall. This summer, Graves finally won his fight for restitution and received $1.4 million from the State of Texas.

Dale Lincoln Duke spent 14 years in a Texas prison after the prosecutor saw fit to hold back evidence which supported Duke’s defense against child abuse charges.  On November 4, 2011, a Dallas County Judge declared Duke innocent of all charges and Duke is eligible for $2 million in restitution.

Chelsea Richardson served time on Texas Death Row only to get the death penalty taken off the table (she’s still going to serve a life sentence) when appellate fights revealed that the prosecution did not share mitigating evidence with the defense that another defendant was the mastermind in the plot to kill the parents of Richardson’s boyfriend.

Think this is all?  Not by a long shot.

Consider the pending case of Hank Skinner (read the details in our earlier post).  Skinner is fighting for DNA testing of evidence that the prosecutors never saw fit to test which Skinner maintains will prove his innocence.  Skinner was set to be executed by the State of Texas last week, but Skinner was granted another stay — to argue for DNA testing, it still hasn’t happened yet.

Delma Banks had to go all the way to the United States Supreme Court before it was confirmed that prosecutors had suppressed evidence in her case (along with lots of other bad things) and she was freed.  Read about her case here.

Former Texas District Attorney  Stephanie McFarland got caught withholding evidence TWICE before things changed (read the details here).

Yolanda Madden spent four years in jail before it was confirmed that the prosecutor withheld evidence in her case: seems that it took a federal judge to grant Madden’s freedom.  Read the details here.

This isn’t an exhaustive list by any means.  However, it does serve to demonstrate that district attorneys need to be viewed in a different light today – by criminal defense attorneys, by judges, by juries, by the public.

Take the time to count the years that people listed above wrongfully spent in jail, think about if that was your loved one:  things must change, and until they do, prosecutors should not be assumed to be working solely in the pursuit of justice.  Because all too often, they’re not.

Posted by Michael Lowe at 11:48 am

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


November 9th, 2011

Texas Prosecutors Come Under Increased Scrunity in Texas: Hank Skinner Stay Within Weeks of Michael Morton Release

Hank Skinner is still alive today thanks to a last minute stay granted by the Texas Court of Criminal Appeals – and it’s still open for debate whether or not his requests will be granted for DNA evidence to be tested. (For details on Hank Skinner’s case, check out our earlier posts here and here.)

Read the November 7, 2011 Order and Opinion of the Texas Court of Criminal Appeals in the Hank Skinner case online here.

However, as Hank Skinner’s story continues to be followed by the international media there is a new slant on the story that is gaining lots of ground:  the actions and attitudes of the Texas prosecutors in the Hank Skinner case.

This is especially interesting, given the recent reporting on prosecutorial misconduct in the Michael Morton case. It was only a few weeks ago that the Texas Court of Criminal Appeals issued its opinion in Morton’s case, freeing Michael Morton as an innocent man wrongfully convicted of his wife’s murder after serving many, many years on Texas Death Row.

DNA evidence freed Morton — evidence that the Texas prosecutors in that case didn’t want to pursue, didn’t want to use, didn’t want to be considered on appeal. Hank Skinner is fighting a similar fight to Morton’s quest for justice; Skinner’s case, however, appears to be even stronger in its own way than Morton’s arguments.

That’s because in Hank Skinner’s case, a Texas prosecutor (Gray County District Attorney John Mann) did have crime scene evidence tested for DNA only to find that:

  • Hank Skinner was at the crime scene (Skinner doesn’t dispute he was there, just that he was too intoxicated to do anything)
  • Hair from an unknown person was found in one victim’s hand (DNA shows it’s not Hank Skinner’s hair)
  • Blood on a cassette recorder at the scene is from an unknown person (not the victims nor Hank Skinner)
  • Blood on gauze found on the sidewalk in a blood trail, also from an unknown person (not the victims nor Hank Skinner)

After the Gray County District Attorney got this DNA evidence back from his crime lab, what did he do?  He stopped testing evidence.  That’s right.

Which means the Texas prosecutor did not test:

  • two knives found at the scene with blood on them, known to have been used in the murders
  • vaginal swabs taken from one victim, found with her pants halfway off her body
  • a windbreaker found at the crime scene within 24 inches of a victim’s body, covered in blood and sweat – a jacket known to be similar to one worn by this victim’s uncle — who had been stalking her shortly before the murders

It gets worse.  After that District Attorney lost re-election, the new District Attorney reviewed the crime reports on the DNA tests that had been done and told Skinner’s attorneys about them — but coupled that with his position that there would be no more DNA testing without the court forcing the prosecution to do so.

That’s right:  he knew about the windbreaker, the knives, and the swab — and he refused to test them.

So what’s with the prosecutors in the State of Texas?

Why would a Texas district attorney do this, aren’t they supposed to be representing the State of Texas in the pursuit of justice?  Good question.

Right now, we’ve got law school professors giving their opinions on why these prosecutors would do stuff like this to CNN and we’ve got leaders of the Innocence Project giving their take on things in the media, like Chicago’s David Protess at the Huffington Post.

Lots of talk and discussion over something that doesn’t seem that hard to see:  Texas prosecutors look to be more interested in victory in the courtroom than in justice being served.  Not big news to criminal defense bar in Texas, but it seems to be shocking to most of the American Public.

Posted by Michael Lowe at 5:33 pm

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Labels: Court Opinions, DA Watch, Orwellian Threats to Rights


October 19th, 2011

Texas Driver Responsibility Surcharge Nightmare: DPS Isn’t Following the New Law

Effective September 1, 2011, a new law went into effect here in Texas designed to help lots of folk convicted of a moving traffic violation, by changing the old law that required everyone who got a traffic ticket (including DWI) to pay a Driver Responsibility surcharge. For details, check out our post back in August 2011.

These Driver Responsibility Surcharges are VERY EXPENSIVE.  The new law has been the law of the land for 39 days already, and yet something fishy is going on.  VERY FISHY.

First, consider how expensive these Driver Responsibility Surcharges are.  Back in April 2010, we discussed the cost of DWI Surcharges.  From that post:

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.

Next, consider what’s been happening since September 1st.   Apparently, not much.

Seems that the Texas Department of Public Safety hasn’t been following the new law – and Grits for Breakfast has the emails to prove it. Our fellow blogger (in a blog we recommend you follow, see the sidebar), a non-lawyer mind you, wrote the state agency to check into how things were doing with the change on Surcharges and what he got back in email has been published online.

DPS, bottom line, has no “…estimated date for implementation…” and isn’t doing a darn thing about complying with the new law.

This, of course, doesn’t mean that the new law isn’t effective.  It just means that the Department of Public Safety is dragging its heels on waiving those surcharges.  You are entitled to the waiver if you meet the law’s requirements – period.   You don’t need to file a special pleading anywhere.

Still, here’s the reality:

1.  someone is still going to get surcharge notices from DPS regardless of the new law;

2. the DPS records are still going to show a lot of folk responsible for paying money that the new law says they don’t owe;

3.  someone pulled over by a police officer (for speeding, no turn signal, whatever) is still going to have a fight on their hands when the cop runs their Texas Driver’s License number through DPS records and gets notified that the driver owes surcharges — which is not true under the new law; and

4.  some legal fees are going to have to be paid by folk to get a Court Order signed by a judge that confirms that they don’t owe the surcharge just to win a fight with DPS that shouldn’t be necessary … if DPS would just follow current Texas law.

Posted by Michael Lowe at 4:43 pm

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


June 29th, 2011

Biggest DWI “No Refusal” Campaign in U.S.A. Happens in Texas Over 2011 Fourth of July Weekend: What Should You Do if You Have a Bad DWI Blood Test?

These state-wide manhunts for drivers driving under the influence of alcohol aren’t news – law enforcement likes to mount these campaigns over major holidays, and we’ve posted about them before.

However, in the tradition of Texas doing everything bigger and better, over this Fourth of July holiday weekend, the Great State of Texas will make the record books as having the biggest No Refusal campaign that the country has ever seen – and the first such state-wide campaign in history.

Texas has asked for, and received, federal monies to help pay for this 2011 No Refusal onslaught.

As of today, there are around 200 different Texas law enforcement agencies that will be participating. They will have extra officers on the roads, eyeballing traffic for suspicious drivers: those driving aggressively, people who are speeding, or any cars weaving between lanes as well as any other signs that someone might be driving drunk.

It won’t just be over the usual three day holiday weekend, either. The 2011 No Refusal Campaign, hosted by the Texas Department of Public Safety, covers Friday, July 1, 2011 (6 pm) through Tuesday, July 5, 2011 (6 am).

During the No Refusal campaign, the police officer will be asking for a blood test, none of the usual breath tests on a machine or the old school field sobriety tests. Those suspected of driving under the influence of alcohol will be arrested there on the road for suspicion of DWI, and taken to the local police station. Judges will be setting there, at the station, ready to sign the necessary search warrant needed to take the blood for the blood test. A nurse will be there, too, all ready to take the blood from the citizen.

For example, the Irving Police Department already has its North Police Station prepared for this holiday weekend’s No Refusal Campaign.

What Should You Do If You are Arrested for DWI Based on a No Refusal Campaign Blood Test?

Forget the arguments about civil liberties, Big Brother, and the like.  Those arguments are there, but practically speaking, if you get pulled over during No Refusal Weekend, and your blood tests over the legal limit, do you have any defense left to a DWI charge here in Texas?   Maybe so.

Blood tests are not inviolate, and there have been successful legal challenges to them, specifically, as well as to the protocols and procedures of the particular event.  For details on legal defenses to DWI blood tests, read the resources section of the Lowe web site.

Never has it been more important to get a criminal defense attorney on your side as soon as possible as it is now, with these expedited No Refusal proceedings.  If you get pulled over, get a lawyer fast.

Posted by Michael Lowe at 4:02 pm

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Labels: Cop Watch, Orwellian Threats to Rights


June 8th, 2011

Ex El Paso Medical Examiner’s Doctored Resume Gets Him Fired But Texas Medical Board Rules Dr. Paul Shrode Was Qualified For the Job

Dr. Paul Shrode was the Chief Medical Examiner for El Paso for five years, until he was fired in 2010 after a controversy arose about his background and whether or not the errors on his resume (discovered and reported by the local ABC television channel, ABC-7) meant that Dr. Shrode did not have the proper credentials to be the medical examiner for El Paso.

Texas Medical Board Clears Dr. Paul Shrode and Closes Their Investigation Into Former El Paso Medical Examiner

The El Paso County Commissioners thought they’d been had: they terminated Dr. Shrode based upon the expose.  However, the Texas Medical Board didn’t see things the same way and last Friday, they dismissed their investigation into Dr. Paul Shrode finding that:

“there was sufficient proof that Dr. Shrode was qualified for the position of medical examiner, that he had not advertised his credentials in the public domain, and that he had been subject to a thorough pre-employment interview and questioning of his credentials.”

What about his resume?

In the 2007 expose, ABC-7 reported that the medical examiner had given county officials a résumé with two big errors:

  1. it listed a 1979 law degree from Southwest Texas State University in San Marcos (School of Political Science); however, STWSU did not offer law degrees and only began offering a paralegal certification in 1980.
  2. it listed past job experience as Lubbock’s County Medical Examiner; however, the actual experience was as an employee of Texas Tech University where the doctor did some autopsies.

Will This Stop Defense Attorneys From Calling Foul on Dr. Paul Shrode’s Past Rulings in Criminal Cases?  No.

As the Chief Medical Examiner for El Paso, Dr. Paul Shrode gave testimony in case after case in criminal matters involving bodies — in other words, serious felony matters, usually involving allegations of homicide.  Some of these cases had prosecutors seeking the death penalty — and Dr. Shrode would take the stand as the Top Forensic Guy in the County and give his opinion.

Now that Dr. Shrode’s education and experience have been shown not to be what he presented in those court cases, it should come as no surprise to anyone that criminal defense attorneys are shocked, outraged, and of the opinion that every case this man was involved in should be reviewed. The Ohio Parole Board obviously agreed: they recommended clemency for a man sitting on Ohio’s Death Row after discovering that Dr. Paul Shrode was the medical examiner who gave testimony in his trial.

So, will last Friday’s ruling by the Texas Medical Board stop these challenges?  Should it?

Defense attorneys are still going to challenge Dr. Shrode’s testimony and opinion even with the Texas Medical Board’s ruling.  If we can’t trust the guy’s resume, then how can we trust any opinion he provides?

Posted by Michael Lowe at 4:39 pm

2 Comments
Labels: Crime News, Orwellian Threats to Rights


May 11th, 2011

Who Will Bring Texas Prosecutor James Elliott to Justice In the Delma Banks Case? He’s Retrying a 30 Yr Old Death Penalty Case Despite US Supreme Ct Rebuke

In 2004, Texas Death Row inmate Delma Banks’ case came before the United States Supreme Court, where the Highest Court in the Land found that prosecutors had done very bad things — they had suppressed evidence, they had hidden their own mistakes, etc. — and because of this, Banks’ case was overturned.  Read the U.S. Supreme Court opinion here, written by Justice Ruth Bader Ginsburg.

The Texas Tribune quoted UT Law professor Robert C. Owen (and Banks’ co-appellate counsel) as saying that “… just about every kind of thing the prosecution could do that was improper….” was done in this case.

You’d think that the Bowie County district attorney’s office might be a little, well, chagrined about this.  Embarrassed.  You’d think that maybe they would treat the case a bit differently once it came back to their desk, right?

Wrong. The same prosecutor that manned that helm 30 years ago in this notorious prosecution is going back to court, seeking the death penalty against Delma Banks again. AGAIN.

James Elliott is on a mission, according to the Tribune, to go after Banks until Banks “ …gets what he deserves.”

Moving to Disqualify

Next Monday, no surprise to anyone, Mr. Banks’ motion to disqualify Jim Elliott will be heard before District Judge Nathan E. White – along with the rest of the Bowie County District Attorney’s Office. Bias. Conflict of Interest. You follow the gist of things.

Seems like it will be an easy call for the court. After all, the record will show (remember, you’ve got records that include a United States Supreme Court opinion here) that among other things:

  • there was no physical evidence linking Banks to the crime of killing Whitehead
  • there were no witnesses to the killing
  • Banks was black and 21 years old at the time of the killing
  • Whitehead was white
  • Banks had no criminal record
  • Witnesses who saw Banks and Whitehead together that night said they were fine, no ill will
  • it was an all-white jury that convicted Banks
  • it was an all-white jury that sentenced Banks to death

And, importantly, the record will show that 20 years after the trial, a federal district court judge forced the Bowie County, Texas, records to be opened and there it was found that:

  1. one of the two prosecution witnesses relied upon to prove their case had had his testimony rehearsed and coached – a lot; and
  2. the other prosecution witness had been a police informant with a record of being shifty who was paid $200 for his part in the case.

We join with Grits for Breakfast, asking why prosecutors are not disciplined by the State Bar or otherwise sanctioned when an appellate court finds prosecutorial misconduct.

On Monday, the well-respected Texas blogger Scott Henson at Grits for Breakfast published a post worth reading, entitled, “ Why aren’t prosecutors held accountable when appellate courts find knowing misconduct?.”

Looking at the Banks’ case as well as the analogous Anthony Graves case, Mr. Henson actually conducted a poll of his readers to find what they thought about disciplining district attorneys who do bad things during the prosecution of a criminal matter, particularly one where they are asking for the penalty of death.

Results?  An overwhelming number think that there should not be a shield of immunity here.

However, right now, the only bad thing that may happen to Texas prosecutor James Elliott is that he may be disqualified from the case on Monday.  Is justice served?

Posted by Michael Lowe at 8:33 am

1 Comment
Labels: Court Opinions, DA Watch, Orwellian Threats to Rights


February 9th, 2011

Texas Police Are Tracking Your Every Move – Right Now – Through Automatic License Plate Readers Databases: Anyone Bother to Get Your Okay?

Automatic License Plate Readers, also known as License Plate Recognition Devices, have creeped into the daily routines of police departments across the State of Texas and elsewhere under the guise of cutting edge law enforcment technology used to capture criminals.  What the American public and the Texas citizenry are not being told is that it’s not just criminals, or accused criminals, that are getting recorded and reported: it’s all of us.

These Automatic License Plate Readers are placed in patrol cars, cameras on the hoods and boxes inside near the driver, where they automatically gather video data of every license plate that passes within their perimeter.  Every car.  Now, that doesn’t sound so bad until you learn that it’s not just one cop car at a single intersection doing this.  Nope. 

There are lots and lots and lots of gizmos out there, gathering into on license plates and where they are during the day or night.  This information is collected, and stored, giving the police the ability, should they choose to do so, of tracking any individual’s daily routine.  All by their car license tag.  Without their knowledge.  Without the person being accused of violating any law whatsoever.

These things are so commonplace that they have their own Wikipedia page, where “Automatic Number Plate Recognition,” is described as:

 … a mass surveillance method that uses optical character recognition on images to read the license plates on vehicles. They can use existing closed-circuit television or road-rule enforcement cameras, or ones specifically designed for the task. They are used by various police forces and as a method of electronic toll collection on pay-per-use roads and cataloging the movements of traffic or individuals.  ANPR can be used to store the images captured by the cameras as well as the text from the license plate, with some configurable to store a photograph of the driver. Systems commonly use infrared lighting to allow the camera to take the picture at any time of the day. ANPR technology tends to be region-specific, owing to plate variation from place to place.  Concerns about these systems have centered on privacy fears of government tracking citizens’ movements, misidentification and high error rates.

That’s right:  Texas law enforcement is using “mass surveillance” without your approval. 

The Highland Village Police Department is using this gizmo, and its Police Captain Corry Blount was recently quoted telling a San Antonio reporter  they don’t have a problem with having a database exceeding 700,000 hits (and growing) which they use as a reference tool in their investigations.  No, the individuals within the database are not notified that their information is contained within the Highland Village records. 

One of the suppliers of these Automatic License Plate Readers proudly touts the police departments of Tyler, Mesquite, and Houston as recent (and repeat) customers of its Platescan product, as well as Border Patrol organizations. 

Platescan also plans on expanding its service to sending advertisements to cars as they pass by commercial establishments — how clever, right?  This isn’t an invasion of privacy, it’s for our convenience.  Like we can’t see the Pizza Hut as we drive down the street, we need to get some advertisement inside our car that lets us know this? 

Sounds fishy, doesn’t it?  The ACLU thinks so.  The Texas Observer covered this threat to civil liberties last summer, in a cover story written by Forrest Wilder, “The Eyes of Texas Cops Are Upon You.”   One point made in the article: what happens when the police departments decide to share all this data, creating one big database?  (They’re already talking about it, all under the banner of crime investigation.)

You need to read this article, and you need to think about how much you value your right to privacy and your freedom here.  Because use of this Automatic License Plate Readers is clearly an invasion into your privacy and a threat to your civil liberties.   That’s not opinion: that’s fact.

Posted by Michael Lowe at 8:48 pm

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Labels: Cop Watch, Orwellian Threats to Rights


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