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May 15th, 2013

New Texas Laws Targeting Prosecutorial Misconduct: The Michael Morton Act and new Tex Gov’t Code 81.072(b) Limitations – Do They Really Help Texas Citizens?

Yesterday, the Texas Legislature sent two bills over to Governor Rick Perry’s desk for his signature:  the new Michael Morton Act (SB 1611) and an amendment to the Texas Government Code Section 81.072 (SB 825).  It’s expected that Governor Perry will sign this bills into law, and soon we’ll all be under their sway.

Here’s the big question:  what exactly do these new laws do – and how do they impact Texans who are investigated, arrested, charged, tried, or convicted in a Texas courtroom through the efforts of a Texas prosecutor?  Are Texas citizens helped here?

1.  The Amendment to Texas Gov’t Code 81.072

This section of the codified Texas statutes deals with time periods within which cases can be filed — “limitations” are placed into law here as time deadlines and they are commonly known as “statutes of limitations.”  The new law amends an existing statute of limitations to provide for prosecutorial misconduct (something that Texas has in arguably epidemic proportions).

Now, assuming that Governor Perry okays SB 825, the time deadline clock starts to run when the wrongfully convicted person is released from incarceration and there is a four (4) year time deadline within which to file a lawsuit based upon a district attorney withholding or suppressing evidence in that wronged person’s case.

From the language of SB825 itself:

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 81.072, Government Code, is amended by amending Subsection (b) and adding Subsections (b-1) and (b-2) to read as follows:

(b) The supreme court shall establish minimum standards and procedures for the attorney disciplinary and disability system. …

(b-1) In establishing minimum standards and procedures for the attorney disciplinary and disability system under Subsection (b), the supreme court must ensure that the statute of limitations applicable to a grievance filed against a prosecutor that alleges a violation of the disclosure rule does not begin to run until the date on which a wrongfully imprisoned person is released from a penal institution.
(b-2) For purposes of Subsection (b-1):
(1) “Disclosure rule” means the disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09(d), Texas Disciplinary Rules of Professional Conduct.
(2) “Penal institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.
(3) “Wrongfully imprisoned person” has the meaning assigned by Section 501.101.

This new bill when it becomes law essentially changes the law’s starting point:  before, the limitation’s clock began at the time that the evildoing happened (when the prosecutor did his or her bad acts).  For those who have been victims of prosecutorial misconduct, this gives them a clear and open field to investigate and pursue complaints to the folks that police law licenses in the State of Texas about bad prosecutors who have done bad things with evidence in criminal trials.  (Unlike now, where Ken Anderson is arguing a limitations defense in the Michael Morton prosecutorial misconduct case.)

This helps Texas citizens who have been wrongfully convicted to seek justice against district attorneys who, for whatever misguided reason, held back or suppressed or failed to share evidence at the criminal trial which would have helped the defense.  It does so by giving them four years to take action after they’ve been released from jail and that is a good thing.

2.  Michael Morton Act

It’s not clear how much the new Michael Morton Act, passed as SB 1611, will help Texans in the future when they have fallen victim to a bad prosecutor.  Of course, many are thrilled to see this law come into being and it’s being touted as an excellent action for the Texas Legislature to have taken. Others aren’t so sure what we’ll be dealing with once all that confetti gets swept off the streets.

The Michael Morton Act is designed to deal with prosecutorial misconduct and it is named after wrongfully convicted Texan Michael Morton (read more about his story here).  It does so, explains State Senator Rodney Ellis, by “… ensuring that all relevant evidence that speaks to a defendant’s innocence or guilt is revealed.  It creates a uniform, statutory “open file” criminal discovery policy for the State of Texas.”

You can read the Michael Morton Act in its entirety online here.

Here’s the thing:  read the language of this new law closely and you will not find any tools to deal with evildoing district attorneys, or “rogue prosecutors” as they are often called.

It is the intentional decision to hold back evidence that is at the heart of the Michael Morton case, and in this law named after that victim of prosecutorial misconduct there is no firm hand taken in how exactly to stop and to deal with district attorneys who decide for themselves that certain pieces of evidences should never make it into the discovery process and thereby into the hands of competent criminal defense counsel.

Would Ken Anderson, now found in contempt of court and appealing that ruling on limitations grounds, have been stopped by this new law?  That’s a good question.

Posted by Michael Lowe at 2:09 pm

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Labels: Crime News, DA Watch, Orwellian Threats to Rights, Texas Government Watch, Wrongfully Accused


May 8th, 2013

Texas Top Prosecutors In Trouble: Dallas DA Craig Watkins, Austin DA Rosemary Lehmberg, Corpus Christi ex DA Anna Jimenez, Williamson County ex DA Ken Anderson – How Big is Prosecutorial Misconduct Problem in Texas?

In the past couple of months, top prosecutors from Texas counties all over the Lone Star State (both presently serving as head prosecutor as well as former top D.A.s) have made the national news after being accused of doing assorted bad things while acting as head district attorney for their respective counties.

What is the lesson to be learned here, when so many head prosecutors of prominent Texas counties are facing or have already been found guilty of serious bad acts?  Consider these pending actions:

1.  Dallas County District Attorney Craig Watkins

Currently the head prosecutor for the Dallas area, Craig Watkins has been running the Office of the District Attorney for Dallas County in the State of Texas since 2006. Mr. Watkins has been facing charges of prosecutorial misconduct for several months, read our prior coverage for the backstory.

The Dallas District Attorney has been found in contempt of court for not giving testimony at a hearing into his possible prosecutorial misconduct, and that contempt ruling has been scheduled for review prior to Mr. Watkins having to face the consequences of being found in contempt of a Texas trial court judge.

Right now, it’s expected that Wichita Falls District Court Judge Bob Brotherton will set a hearing sometime this month to review the ruling made on March 7, 2013, by Dallas District Court Judge Lena Levario that the Dallas County District Attorney, Craig Watkins, was in contempt of court because he refused to testify in her courtroom at a hearing on possible prosecutorial misconduct in the filing of mortgage fraud criminal charges against Al Hill III.

2.  Travis County District Attorney Rosemary Lehmberg

Currently the head prosecutor for the Austin area, Rosemary Lehmberg has been running the Office of the District Attorney for Travis County in the State of Texas since 2009 and is presently up for re-election. Today, Ms. Lehmberg was released after serving 20 days of a 45 day jail sentence after being arrested for Driving While Intoxicated on April 12, 2013 and sending a letter on April 14, 2013, where Ms. Lehmberg graciously took responsibility for her actions (read her letter here) and entered an unconditional plea of guilt.

Rosemary Lehmberg was also punished by being fined $4000 and having her Texas Drivers’ License suspended for six months. However, it does not appear that the Travis County DA will suffer the loss of her office: while there are those seeking her removal, she is not resigning after being arrested for DWI, and there are many local attorneys among others who are publicly supporting her remaining in office as the head prosecutor for Travis County.

3.  Nueces County District Attorney Anna Jimenez

Serving as the head prosecutor for the Corpus Christi area after being appointed by Governor Rick Perry in 2010, Anna Jimenez ran the Office of the District Attorney for Nueces County in the State of Texas until she failed to retain the position in a full election.

Last week, ex-District Attorney Anna Jimenez, who served in the Nueces County District Attorney’s Office for over 15 years prior to her appointment as top prosecutor, was indicted by a Jackson County Grand Jury on aggravated perjury charges.

The indictment alleges that Ms. Jimenez made false statements about witnesses in the pending case of Christian Blair Robinson, who will be tried in September 2013 for the murder of his 5 month old infant son.   While acting as prosecutor, Anna Jimenez is alleged to have sworn in an affidavit that three witnesses were not available because they refused to be interviewed and one witness could not be found, when the three witnesses had been interviewed by others and the fourth witness was not contacted.

Read the Indictment here.  Ms. Jimenez has been suspended from work with pay at the Nueces County District Attorney’s Office.

4.  Williamson County District Attorney Ken Anderson

Serving as the head prosecutor for the  Georgetown area for several years and later as a Texas District Court Judge, Ken Anderson ran the Office of the District Attorney for Williamson County in the State of Texas.  Right now, Mr. Anderson has been found guilty of violating Texas law as well as being in contempt of court by Judge Louis Sturns who presided over a Court of Inquiry ordered by the Texas Supreme Court to investigate and rule over charges of prosecutorial misconduct by then-prosecutor Ken Anderson in the homicide trial of Michael Morton, a man later shown to be innocent of the charges for which he was convicted.

Specifically, the former prosecutor was found to have done two bad things:  withholding  (1) the transcript of an interview local police had with Michael Morton’s little boy where the child told them that his dad was not home when his mother was killed and that he had seen the murder as it happened; and (2) evidence that there was a green van parked near the Morton’s house that day, and that a stranger was seen parking the green van and walking not once, but several times, into the woods behind the Morton home during the pertinent time period.

Judge Sturns issued his ruling in late April 2013 (read his ruling here) and for a short time, ex-DA Ken Anderson was behind bars after being arrested in accordance with that ruling.  Currently, Anderson is out on bail and appealing the ruling on statute of limitations grounds:  his argument, the Court of Inquiry proceedings are time barred by Texas law.

(Note:  The Austin American Statesman has made Ken Anderson’s deposition transcript available to those interested in reading his testimony here.)

Posted by Michael Lowe at 12:49 pm

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Labels: DA Watch, Orwellian Threats to Rights


April 10th, 2013

Report on Crime Lab Evidence Released: DPS Lab Tech Jonathan Salvador May Have Sent 1000s to Texas Prisons in Wrongful Convictions – and the CCA is Reversing The Convictions

Juries are known by criminal defense lawyers and prosecutors alike to consider forensic evidence as being irrefutable and some of the most respected evidence in a criminal trial.

Juries like lab stuff: it’s known as the “CSI effect” by some roaming around the courthouse, and it has nothing to do with the realities of what scientific evidence really provides.  Maybe with the latest revelations by the Texas Rangers and the Texas Forensic Science Commission, public perception will change.

And if it does, then history may reward one single individual with credit for reversing the respect and reliance placed upon lab results in Texas Courtrooms.  That man’s name is Jonathan Salvador,  formerly employed as a DPS-Houston crime lab worker.

Texas Forensic Commission Report Released

Last week, the Texas Forensic Science Commission officially adopted a report compiled by TFSC and based in part upon similar investigations by both the Texas Rangers and the Office of the Inspector General.  The report investigates crime lab results used as evidence is lots and lots of criminal trials.  It’s big news:  the official report determines that Jonathan Salvador’s failures as a crime lab technician puts literally 1000s of convictions into question.

Thousands.

That’s right.  The official report finds that there are 1000s of men setting behind bars today who didn’t get a fair trial.  Why not?  They were convicted on crime lab evidence that came from Mr. Salvador’s work.

Crime Lab Results Only As Good as the Lab Tech – Bad, Bad Jonathan Salvador

What’s with Salvador’s lab results?  Seems that the DPS Houston office had this guy doing work in their Department of Public Safety Crime Lab:  he worked there for a long time and performed lots and lots of lab work destined for criminal trials.

By the time that Mr. Salvador was suspended from his job as a DPS forensic scientist in February 2012, he had worked on 4900 different drug cases in 30 different Texas counties.

Jonathan Salvador lost his job when it was discovered that he replaced the results of one test with another, unrelated lab test. That brings many to the question of what to do with those other 4899 cases that Salvador worked:  what to do about them?  Should any of them be trusted?  Aren’t they all scientifically compromised?

Think about it.  That’s a lot of lab tests before Salvador’s faking lab results in a controlled substance drug test was discovered.  (Note:  A Houston Grand Jury considered Salvador’s actions but didn’t indict him for any criminal charges.)

How could this happen?  That’s not clear.  The Report includes interviews with Salvador’s former lab buddies and these DPS lab employees reported that Mr. Salvador ”… struggled with corrections and an overall understanding of the chemistry, especially in difficult cases.”

Court of Criminal Appeals Will Rule in Favor of Defendants in These Tainted Convictions

According to a representative of the Innocence Project of Texas in reporting to the TFSC, the answer to this problem regarding appeals of the other cases where Salvador was involved is to have the Court of Criminal Appeals apply its same opinion to every case that comes before it that involves Jonathan Salvador lab evidence.

The High Court is taking the practical approach of ruling in favor of these defendants as they bring their cases before the CCA.

Ten convictions have already been reversed by the Texas Court of Criminal Appeals because of crime lab results involving the now infamous DPS Houston crime lab worker, Jonathan Salvador.

As the Court of Criminal Appeals explained in its March 6, 2013, per curiam opinion in Ex Parte Junius Sereal (read the opinion here):

The DPS report shows that the lab technician who was solely responsible for testing the evidence in this case is the scientist found to have committed misconduct. While there is evidence remaining that is available to retest in this case, that evidence was in the custody of the lab technician in question. This Court believes his actions are not reliable therefore custody was compromised, resulting in a due process violation. Applicant is therefore entitled to relief.

Posted by Michael Lowe at 12:57 pm

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Labels: Crime News, Orwellian Threats to Rights


April 3rd, 2013

Cell Phone Information: Police Investigators Can Grab Tons of Personal Information Off Smart Phones Without a Warrant

The mysterious shooting deaths of two Kaufman County prosecutors, as well as one of their wives, is taking up lots of media coverage as well as lots of chatter around Dallas area courthouse hallways.  The investigation into these deaths is ongoing, and there’s no clear answer as to what has happened here.

You’ve probably heard about how Michael McClelland and his wife, Cynthia, were shot to death last Saturday; McClelland was the District Attorney of Kaufman County.  One of his assistant DAs, Mark Hasse, was shot to death on January 31, 2013.  The investigations into all three deaths are intertwined.  State and federal authorities are all on the job.

The Dallas Morning News’ Crime blog is providing great coverage of the Kaufman County slayings, if you are interested in following the case(s).

Kaufman County Investigations Spotlight Criminal Investigations Use of Cell Phone Records In Building Their Case

For future criminal defense cases, one important detail is popping up during all this coverage: the ability of investigators to access cell phone records in their criminal investigations.

The Fort Worth Telegram has obtained and shared the affidavit that was submitted in the Kaufman County investigation (read it here):  the Texas Rangers are seeking not only the cell phone records of the deceased but also records of all cellphone traffic near their home in Forney, where the shootings occurred.

(If you were driving around that area over the weekend with your cell phone, do you think the Texas Rangers get to know that information without your okay?)

Cell Phones Are a Different Kind of Property Since They Hold So Much Digital Information

The American Civil Liberties Union (ACLU) recently revealed just how much law enforcement is able to pull off any smart phone they come across.  The ACLU published a list of the items that the federal government was able to pull from a single phone search without a search warrant.

The federal government went through the bedroom of a suspect in a drug investigation and one of the ICE agents grabbed up an iPhone while they were there.  From that one cell phone, without any search warrant where a judge approved them looking at this personal information, the government was able to find all this off that one phone:

  1. call activity — everyone the person called, and everyone who  called them (and how long each chat took);
  2. phone book directory information — every number he looked up (pizza joints, parents, other people, whoever);
  3. stored voicemails and text messages — that’s right: the agents could listen to all the phone’s voice mails and read all the texts;
  4. photos and videos — they could watch all the stored videos and check out every single photo stored on the phone;
  5. apps — they could skip through all the apps stored on the phone and gather more personal information there;
  6. eight different passwords — they could grab all the person’s passwords; and
  7. they could track where the person had traveled through 659 geolocation points, including 227 cell towers and 403 WiFi networks with which the cell phone had previously connected.

Think about that — without a warrant, the ICE agent got all this information off that one phone.  Something that otherwise, the federal investigators would clearly have had to get a search warrant to obtain.

Location information, the last item on this list and what some might argue is the least intrusive, is still arguably a violation of privacy rights protected by the Fourth Amendment.   This issue is key to the Kaufman County investigation — and something that hopefully media coverage will bring to the attention of a lot more people out there.

What Does Eric Holder Say?  Department of Justice Holds Position That Warrantless Searches of Cell Phones Are Okay

The federal government’s legal position on searching cell phones without the protection of a judge approving the search via a search warrant is clear:  the Department of Justice and Attorney General Eric Holder take the position that no one has a “reasonable expectation of privacy” for whatever is stored on their cellphone – at least insofar as location information.

(Do you agree with this?)

Texas Doesn’t Agree With the Feds on Cell Phone Information — You Need a Warrant Here in Texas

Texas isn’t as free with tossing around someone’s privacy rights as the Justice Department appears to be.  Right now, a proposed law is making its way through the Texas Legislature  that will amend the Texas Code of Criminal Procedure to force all law enforcement agencies to get a search warrant signed by a Texas judge before they can grab and use location information on a cellphone.  The law would also make cellphone companies reveal how many requests for location information they get from law enforcement.

Also, at least one federal judge down in the Rio Grande Valley is fighting against law enforcement using cellphone data without a search warrant.  As we reported earlier, the Honorable Brian L. Owsley, U.S. Magistrate for the United States District Court for the Southern District of Texas, is ruling against authorities use of Stingrays and Cell Phone Tower dumps without an official search warrant.

Right now, the investigation is hot in the Kaufman County D.A. Shootings and law enforcement from various jurisdictions have formed a task force to track down the persons responsible for killing two prosecutors as well as one of their spouses.

Seems likely that this sort of posse will be happy to use cell phone information to track down suspects — but what is happening to the privacy rights of all of us in the meantime?

Here in Texas, what will happen to the Fourth Amendment right to protection from invasive search and seizure? Your privacy rights are at risk.

Posted by Michael Lowe at 3:58 pm

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Labels: Orwellian Threats to Rights, Search and Seizures


February 20th, 2013

Dallas District Attorney Craig Watkins Facing Prosecutorial Misconduct Charges and Maybe an FBI Investigation: Here’s the Scoop (The Hearing is March 7th)

Without any opinions or asides, here’s the scoop on the growing controversy surrounding Dallas County District Attorney Craig Watkins; the Federal Bureau of Investigation (FBI); Al Hill III, heir to the H.L. Hunt Oil Dynasty; and local attorney Lisa Blue.

Posted by Michael Lowe at 12:03 pm

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Labels: DA Watch, Federal Government Watch, Orwellian Threats to Rights


January 30th, 2013

Medicare Fraud Sting Operations by Federal Government Includes Senior Volunteers Spying on Doctors and Health Care Providers: Expect to See More National Stings and Sweeping Arrests of Medical Pros in the Future

Be on the look out for seniors in trench-coats if you’re working in the health care industry:  the federal government has proudly launched its latest weapon against health care fraud:  the “Senior Medicare Patrol.”

Here’s the description of this new “tool to fight fraud, strengthen federal and private health programs, and protect consumer and taxpayer dollars” as reported on HealthCare.gov:

As a part of the new resources dedicated to fighting fraud, the Obama Administration has significantly expanded funding for Senior Medicare Patrols – groups of senior citizen volunteers who educate and empower their peers to identify, prevent and report health care fraud. In 2012, the Secretary awarded 54 states and territories with funding to support the Senior Medicare Patrol programs Last year, these programs taught more than 2 million beneficiaries how to look for Medicare fraud. Local Senior Medicare Patrol offices provide assistance when such issues are identified, so that mistakes are corrected and suspected fraud referred to the appropriate authorities. Since 1997, more than 1.5 million seniors and their caregivers have contacted the Senior Medicare Patrol to ask questions or report potential fraud.

Medicare Fraud Bust in Miami: Example of Federal Government Focus on Medicare Fraud / Health Care Fraud Investigations

Here’s an example of the health care fraud prosecutions that are taking place in the United States right now.  This week, the Federal Bureau of Investigation announced that a therapist, 35 years old, was sentenced this week to 4 years imprisonment in a federal prison and ordered to pay restitution in excess of $72 million by U.S. District Judge Patricia A. Seitz in the Southern District of Florida. .

The woman, Nickole Eckert, lost her fight at a six-week trial in November when a jury found her guilty of Medicare fraud (1 count of conspiracy to commit health care fraud) for her part in a Medicare Fraud Scheme that totalled $205 million according to the investigators with the Department of Health and Human Services.

Eckert pays her restitution to the federal goverment.  Once she gets out of the federal prison, she’s also ordered to be under 3 years of supervised release.  From the FBI release on the sentencing this week:

“Evidence at trial demonstrated that the defendant and her co-conspirators caused the submission of false and fraudulent claims to Medicare through ATC, a Florida corporation headquartered in Miami that operated purported partial hospitalization programs (PHPs) in seven different locations throughout South Florida and Orlando,” according to the Department of Justice.

The Medicare Fraud Scheme here involved conspiracy charges that the defendants filed false (fraudulent) claims for payment from Medicare both for themselves and through a company called the American Sleep Institute and their patients were being treated for severe mental illness.  Evidence was provided at her trial to demonstrate that the Miami therapist “… fabricated therapist notes and other documents for patient files and submissions, and taught others to fabricate them, to make it appear both that ATC patients were qualified for PHP treatment and that they were receiving the intensive, individualized treatment PHP is supposed to be.”

Medicare Fraud and Health Care Fraud Prosecutions Are Big Focus of Federal Government and its Medicare Fraud Strike Force

The federal government is serious about investigating health care providers (doctors, nurses, clinics, hospitals, labs, therapists, home health care companies, etc.) and big Sting Operations have already resulted in national sweeps where large numbers of arrests are made in one big swoop followed by media coverage.  For example:

1.  In October 2012, 91 people were arrested by the Justice Department for Medicare Fraud in Houston, Dallas, Brooklyn, Baton Rouge, Chicago, Los Angeles and Miami.  This included the president of a Texas hospital in Houston (Riverside General).  Scheme: $452,000,000.00.

2.  In May 2012, 107 people were indicted by the Justice Department for Medicare Fraud in seven cities, including Houston, Miami, Baton Rouge, Los Angeles, Detroit, Chicago, and Tampa.  Scheme:  $205,000,000.00.

More Medicare Fraud Arrests Are Going to Happen

Health care fraud defense lawyers in Dallas and across the country are expecting many more federal arrests and federal indictments of medical professionals in the coming years.  We’re not the only ones:  this week, the CEO of Health Care Compliance Association was quoted in the media warning about these federal fraud investigations into the health care industry.  Roy Snell told HealthLeadersMedia this week that this is coming from pressure on the federal government to boost their arrests because (1) cost of health care reform (Obamacare) and (2) the growing national concern about the deficit.

In other words, these Health Care Fraud Stings bring in big money from restitution orders. If they can collect the money from the May 2012 and October 2012 Schemes alone, then the federal government will take in a restitution total of $657,000,000.00.

So, if you practice medicine these days, then you may be wise to check with someone who practices law to make sure you’re doing everything you can to avoid getting caught in one of these nets.

  • Remember:  an indictment isn’t a conviction.
  • And also remember:  a senior citizen spy from the Senior Medicare Patrol may be watching you.

Posted by Michael Lowe at 12:27 pm

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Labels: Federal Government Watch, Fraud Charges, Orwellian Threats to Rights


January 23rd, 2013

Mexican Shooter Arrested for Planning to Kill Hidalgo Sheriff Lupe Trevino Claims Involvement in Fast And Furious Scandal as Killer of Border Patrol Agent Brian Terry in December 2010

It looked like the dust was settling on all the news coverage of Hidalgo County Sheriff Lupe Trevino having to watch his son, Mission police officer Jonathan Treviño, 28, being arrested along with several other members of local law enforcement by the Federal Bureau of Investigation (FBI) for escorting drug cartel transports along Texas roadways as paid protection (read our earlier post for details).

Coming on the heels of media coverage of his re-election in November, perhaps Hidalgo Sheriff Trevino looked forward to be less of a media star in the coming months.

No such luck.  Because now, within days of the buzz surrounding the federal agents busting those four law enforcement officers for taking thousands of dollars in exchange for helping vehicles filled with drugs move safely through Texas, Hidalgo County Sheriff Lupe Trevino is once again making the national news.  And this time, he’s sharing the spotlight with United States Attorney General Eric Holder and the DOJ’s Operation Fast and Furious Scandal.

Gustavo Cruz-Lozano Confesses to Killing Border Agent Terry on Mexican News Program

In an exclusive interview on the Univision News’  show “Primer Impacto,” a man named Gustavo Cruz-Lozano gave the reporter quite an exclusive when he announced on air that he, Mr. Cruz-Lozano, had killed U.S. Border Patrol Agent Brian Terry on December 14, 2010, as Terry was on duty, patrolling the Arizona border with Mexico.

Most will recognize the Brian Terry killing for its continued connection with the “Fast and Furious” scandal. What’s that?  In essence, Operation Fast and Furious was a federal sting operation that was intended to track firearms going into Mexico from the United States by letting weapons be sold to straw purchasers with the knowledge that the guns would end up with other people which the sting hoped would be drug cartel members.  Through the identification and tracking of these Fast and Furious weapons, they hoped to track the cartel membership and operations and ultimately to arrest cartel leaders.

However, Operation Fast and Furious failed miserably and became the subject of Congressional investigation.  Attorney General Eric Holder as a target of these investigations was held in contempt by the House of Representatives. And Arizona Border Patrol Agent Brian Terry became part of the Fast and Furious story after he was killed by one of the guns initially sold in the sting operation.

Sheriff Trevino Connects to Fast and Furious Through Gustavo Cruz-Lozano

How does Sheriff Lupe Trevino become connected to the Brian Terry shooting and the Fast and Furious scandal?  Well, the man that is taking credit now for killing Border Patrol Agent Terry is the same man who turned himself in this month for threatening to kill Hidalgo County Sheriff Lupe Treviño.

That’s right: this one man, a citizen of Mexico, is telling authorities that he shot down the federal border patrol agent and was planning on assassinating Sheriff Trevino, too.

Down in Hidalgo County, they’ve been looking for Gustavo Cruz-Lozano as one of the men involved in making death threats against Sheriff Trevino since back in October 2012. Apparently, Cruz-Lozano had been identified as the man who had called the Sheriff’s office to threaten his life back in July 2012.

The Federal Bureau of Investigation, meanwhile, isn’t taking Gustavo Cruz-Lozano at his word: there are media reports that the FBI is skeptical that this man was involved in the death of Border Patrol Agent Terry.

In fact, media reports are that Gustavo Cruz-Lozano has recanted his earlier admission about being involved in Fast and Furious, according to the FBI spokesperson.  The FBI is reporting that Cruz Lozano has taken back his story about shooting Officer Terry, claiming that Cruz-Lozano told the story in order to get attention for himself.

Looks like Cruz Lozano was pretty successful there, right?  Interestingly, when Cruz Lozano turned himself in to Texas officials earlier this month, after the TV interview, for planning to kill Sheriff Trevino, he was suffering from at least one stab wound to the neck.

Image above:  House of Representatives Infographic of the Victims of Operation Fast and Furious.

Click here for more information.

Posted by Michael Lowe at 12:30 pm

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Labels: Crime News, Federal Government Watch, Orwellian Threats to Rights


January 16th, 2013

Increasing Gun Control by the Federal Government Announced Today: Will Attorney General Eric Holder Decide Who Owns and Holds Guns in Texas?

This morning, President Obama announced that he will sign 23 Executive Orders today, all of which are targeting guns in the United States: specifically, gun control by the federal government of weapons owned by private citizens. Here is the list just announced at the White House press conference of these 23 Executive Orders:

1. “Issue a presidential memorandum to require federal agencies to make relevant data available to the federal background check system.”

2. “Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.”

3. “Improve incentives for states to share information with the background check system.”

4. “Direct the attorney general to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.”

5. “Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun.”

6. “Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers.

7. “Launch a national safe and responsible gun ownership campaign.”

8. “Review safety standards for gun locks and gun safes (Consumer Product Safety Commission).”

9. “Issue a presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations.”

10. “Release a DOJ report analyzing information on lost and stolen guns and make it widely available to law enforcement.”

11. “Nominate an ATF director.”

12. “Provide law enforcement, first responders, and school officials with proper training for active shooter situations.”

13. “Maximize enforcement efforts to prevent gun violence and prosecute gun crime.”

14. “Issue a presidential memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence.”

15. “Direct the attorney general to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to develop innovative technologies.”

16. “Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.”

17. “Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.”

18. “Provide incentives for schools to hire school resource officers.”

19. “Develop model emergency response plans for schools, houses of worship and institutions of higher education.”

20. “Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.”

21. “Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges.”

22. “Commit to finalizing mental health parity regulations.”

23. “Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health.”

Executive Orders Can Create Federal Law Without the Need for Congressional Okay

Presidents are allowed to issue orders, orders akin to orders issued by a judge, that become law.  Executive Orders, by definition, impact the Executive Branch and control the operations and scope of those agencies and employees of the Executive Branch of the Federal Government.  Which, of course, includes Eric Holder, as the Attorney General of the United States.

Media reports are already circulating past video of Holder’s position on gun control and the federal constitutional protections of citizens and their right to bear arms.  You can read Holder’s perspective on constitutional rights here as well as watch a video of Eric Holder discussing gun rights and gun control online for free.

Suffice to say, Eric Holder appears to be more than ready and willing to change the meaning and impact of the constitutional right to bear arms for all of us.   Meantime, there are already discussions in various statehouses about responding to possible actions by Holder based upon these Executive Orders:  Texas and Oregon are discussing ways to stop these federal actions announced today.

Is the Constitutional Right to Bear Arms Unlimited?  No.

The Bill of Rights includes the Second Amendment of the United States Constitution, which states as follows:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Nevertheless, our right to own guns – pistols, rifles, assault weapons, shotguns, revolvers, semi-automatics, whatever – as well as other weapons (knives, Chinese stars, etc.) are not unlimited.   Laws exist that control guns and other weapons, and have for many years now.  Congress has passed laws regarding guns in the past.   State legislatures have passed gun legislation.

Courts have ruled in ways that have limited guns, too.  For example, consider the Fifth Circuit decision from 2009, United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir.2009) where our federal appeals court agreed with a Texas judge to find that a federal law (18 U.S.C. § 922(a)(6)) does not allow for “straw purchases” of a firearm:  it’s not legal to buy a gun for someone who isn’t allowed to own a firearm under the law, for whatever reason (say, someone underage or with a felony record).

Still, the Second Amendment right to bear arms is considered to be powerful and broad in scope.  Whether or not today’s Executive Orders – which appear to include an attempt to get doctors to question patients on whether or not they own guns - will not only be controversial and challenged in the public arena but undoubtedly also end up being reviewed in the courts, as today’s Executive Orders are suspiciously adverse to the language found in the Bill of Rights.

Posted by Michael Lowe at 12:42 pm

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Labels: Federal Government Watch, Orwellian Threats to Rights


December 19th, 2012

Dallas Roadside Body Search by DPS Troopers Now Subject to Federal Lawsuit – Shocking Video of Dallas Roadside Search of Two Innocent Women

Over the years, we’ve monitored law enforcement in traffic stops and we’ve posted about bad things that have happened on Texas roadways, things like  these dashcam video captures of law enforcement doing wrong (these aren’t the only examples we’ve found, check out our “Cop Watch” section in the sidebar for more):

  1. the Lufkin police officer who pulled over senior citizen Tracey Lott as Mr. Lott was racing his buddy Johnny Hodge to the hospital (where Mr. Hodge was hospitalized for blood pressure and respiratory problems).  The Lufkin officer is caught on his own dashcam as he ignores the distress of Mr. Hodge there in the vehicle, and instead draws his weapon on Mr. Lott, handcuffs the elderly gentleman, and throws him into the squad car;
  2. the Dallas police officers who were videotaped as they chased Andrew Joseph Collins in South Dallas, caught him, and then beat the man with their fists as well as their batons; and
  3. the Travis County Constable (that’s the Austin area) who was filmed using a stun gun (Taser) not once but two times on a 72 year old woman during a traffic stop.

However, the latest dashcam video that has been making the news media rounds this week is perhaps the most astonishing yet:  and no surprise to most criminal defense attorneys here in Texas, it’s now the basis of a lawsuit filed against the Texas Department of Public Safety (DPS) and others involved in this horrific disregard for the rights of ordinary citizens driving along Texas roads.

Irving Traffic Stop Dashcam Video Shows Intrusive and Embarassing Roadside Cavity Search of Two Women Now Basis of Lawsuit

Back in July, Angel Dobbs and her niece Ashley, 24, were driving along Highway 161, going north, when they were pulled over by a Texas DPS Trooper  named David Ferrell. On the video (see it below), DPS Trooper Farrell claims to have pulled the car over because he saw a cigarette butt being tossed out of the car window and that he called DPS Trooper Kelley Helleson to assist him after he allegedly smelled marijuana coming from the vehicle.

No marijuana, nor any other drugs, were ever found in their car.  Moreover, the two women both denied using drugs or knowing anything about any drugs, or having any drugs including marijuana in their possession, custody, or control.

It didn’t matter what they said.  As you can see from the dashcam video, Trooper Kelley Helleson performs a cavity search on these two women during a routine traffic stop here in Dallas, Texas, there on the side of the road.  The video tells the story and the lawsuit is clear: the two women are now seeking damages for what they are describing as a painful and humiliating cavity search. Angel and Ashley Dobbs have sued Troopers Helleson and Farrell as well as Steven McCraw in his official capacity as Director of the Texas Department of Public Safety.

You can read the complaint that they filed in federal court online with all its details of what these women experienced — again, there on the side of a Dallas roadway.

The dashcam video is here (WARNING: THIS IS GRAPHIC IN NATURE):

Ten Things to Know In Case Your Car is Pulled Over in Texas

Here, from the Resources section of the DallasJustice.com web site are ten things to know about when law enforcement in the State of Texas pull your vehicle over:

  1. Your car cannot be pulled over by the police without a reason. Law enforcement cannot stop your vehicle on a whim. They can’t pull you over just to look at your driver’s license and registration. Under the law, the law enforcement officer must have a reasonable belief that there has been either a violation of traffic laws or some other crime.
  2. Once stopped, you are under no legal duty to tell the officer anything other than your name and your home address. That’s it.
  3. You should have the proper stickers on the windshield of your car and your vehicle should be in good working condition. You can be legally stopped if a turn signal isn’t working, or you’ve gone past the month/year deadline on your state windshield sticker.
  4. You can ask to have your attorney with you for questioning at any time a law enforcement officer is asking you questions.
  5. You do not have to agree to any tests of your physical condition. There is no legal requirement that you do any breath tests, field sobriety tests, or blood tests. None.
  6. If things are getting complicated with the officer, stay calm. Use good manners. Ask for your lawyer, politely and firmly. Make sure you have the officer’s badge number.
  7. Your home cannot be entered by the law enforcement officer even if he’s stopped your car right out front. The Fourth Amendment of the U.S. Constitution has lots of protections for the homes of Americans. Exception: if you invite the officer inside. Another exception: the police have legal justification to do so (say, someone screams “help” from inside the home or there’s an explosion or other imminent danger signal).
  8. If your car is stopped then start watching the clock. Law enforcement cannot hold you there on the side of the road for an extended period of time. If things are taking too long, get your lawyer on the line.
  9. It’s not legal to drive under the speed limit, just over. You should not be stopped by law enforcement if you are driving less than the posted speed limit. That’s not suspicious behavior that justifies someone being pulled over under the law.
  10. It’s not legal to block your car or otherwise prevent your vehicle from moving forward once you’ve been pulled over. Law enforcement officers cannot restrict your freedom to leave after their pulled you over by parking in front of you or otherwise creating a barrier.

Posted by Michael Lowe at 11:48 am

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


December 12th, 2012

No One Wants to be a Prison Guard in Texas: Lack of Guards Means Moving Inmates and There’s Talk of Closing Down Some Texas Prisons – But That’s For a Different Reason

No matter what the state of the economy may be, doesn’t look like there are many people out there who are willing to take jobs as guards in Texas jails and prisons these days. No surprise, given what those jobs entail (read more about the heat, and the pay, and more here.)

However, things are getting more serious in the State of Texas as this shortage of guards means that facilities aren’t functioning at even minimum levels of acceptability – and the Powers that Be are now in the process of moving prisoners in guard-strapped prisons elsewhere.

Guard Shortages Mean Texas Prison Officials Are Moving Hundreds of Inmates to Other Jail Facilities Around the State

This month, prison officials are moving hundreds of people out of the Smith Unit in Lamesa, Texas, and the Ware Unit in Colorado City. Both facilities are located up in the hot, dry Texas panhandle and each of them has been operating with 50% guards needed (on a guard to inmate ratio).  Seems that they cannot find people willing to take jobs at these two prisons at the annual starting pay of $28,000 even with a standing offer of a $3000 sign-on bonus.

How many inmates are getting moved?

Smith Unit is relocating 200 men and Colorado City is moving out 400 inmates.  It’s not the first time that relocation has been done in a Texas prison because of the inability to find guards for the facility:  earlier this year, down in Kenedy, Texas, the Connally Unit relocated 696 inmates because of a guard shortage.

Closing Texas Jails: But Motivation Not For Prison Safety – It’s All About Location, Location, Location

Now, we learn that prison administrators are considering closing down Texas jails in their entirety in order to tighten the budgetary belt.  For those in Dallas, this may be big news because one of the facilities that is being discussed right now is closing the Dawson State Jail here in Dallas as well as the Mineral Wells Transfer Facility.  Seems their problem isn’t not enough guards, but not enough inmates.

Both of these are private jails, operated by the Corrections Corporation of America, and it’s not the first time that there’s been talk about shutting down the Dawson State Jail.  However, that wasn’t because of any jail budgetary considerations: back in 2008, the chatter was all about the primo location spot that Dawson State Jail offered to land developers.   There’s still lots of drooling down at City Hall and other places over what could be done on that Dawson State Jail tract.

Will Dallas see the Dawson State Jail and the Mineral Wells Facility shut down?

Maybe so: the union that represents Texas jail employees (like the prison guards) is all for it. And, there’s precedent:  just last year, Sugarland’s Central Unit was shut down despite operating since 1909 and having made a name for itself in the annals of Texas History as the jail sung about in the popular song “Midnight Special.”

Why was the Sugarland facility shut down?  Not enough guards? Nope.  Because the land was more valuable to be developed into other things. Which means that Dawson State Jail’s days are probably numbered given it’s primo location there on the Trinity River.

Posted by Michael Lowe at 11:48 am

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


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