And Carey Cass Hudson has it all on videotape to boot.  (Watch the video below, released by Carey Hudson and the Fort Worth Star Telegram.) 

Warning: This Video is Disturbing.

As you watch the video, you’ll see the following:  he’s handcuffed behind his back.  Not much of a threat to anyone, right?  He’s being escorted by more than one police officer.  He’s shoved into a door frame.  Lotsa cops around.  Then he’s thrown onto the floor in a manner that would make Mike Tyson proud: fast, deliberate, with power.  Carey Hudson doesn’t move, except to curl into a fetal position once he’s on that linoleum floor. 

Two things of note.  Look for the blood there by his head once the cops start to move him.  And count the cops that are either involved in this brutality, or that sashay by while this man is lying there, bleeding. 

The Dallas Morning News is reporting that the DWI charges have been dismissed against Mr. Hudson, and that a settlement of $120,000 is being offered to Mr. Hudson by the City.   You betcha a quick settlement would be good for the City. 

Fourth Amendment, 1983 Actions, and the Crisis of Excessive Force/Police Brutality in this Country

But is this justice?  First, let’s consider what is Excessive Force under the law.  The United States Constitution, under the Fourth Amendment, allows for a personal seizure if it is “reasonable.” 

Remember the Fourth Amendment?  “No person shall be deprived of life, liberty, or property without due process of law.”   That’s important.  Especially today. 

Cross the reasonable line, and you have a federal constitutional violation, and a violation of the Civil Rights Act (42 USC 1983) as well.  That law reads:

Every person who, under color of any statute, ordinance, regulation, custom or usage of any State . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .

What’s unreasonable force?  Unreasonable, or excessive force, is any force that is greater than the amount of physical force needed to subdue a criminal suspect. 

Excessive Force by Cops is a National Law Enforcement Crisis Today

Lack of trust in local police departments due to cops’ repeated use of excessive force is a crisis nationally.  It’s happening everywhere, not just in our neck of the woods. 

Good thing that video cameras are available to document these events – because you gotta wonder if any of us would know anything about what happened to this man in that police station if that camera hadn’t been there. 

Is this an example of Excessive Force?  You decide:

That’s right: the Austin cops gave no special favors.   The Police Chief was busted. 

Chief Board was charged with misdemeanor driving while intoxicated and later released on a $5000 Personal Recognizance Bond.  He’s not on the job, however:  the City Manager has told the media that the Assistant Chief will be handling those job duties while Chief Board deals with some things. 

Right on the Heels of the State-Wide 2010 Labor Day DWI Enforcement Initiative (August 20 – September 6)

Interesting that the Bastrop Police Chief was arrested for drunk driving within days of the beginning of this year’s state-wide DWI enforcement grant program, which begins this Friday (August 20, 2010) and continues over the Labor Day holiday ending Monday, September 6th, 2010. During this block of time, police officers across the state will be focusing upon stopping potential drunk drivers — and over the Labor Day weekend, we’ll have another of those state-wide “No Refusal” campaigns. (“Where the police “don’t take ‘no’ for an answer.”)

After this dashcam video hit the media, office Jones resigned.

Watch for yourself as the police officer pulls the car over, draws his gun on the obviously non-violent, non-threatening senior who was driving, is disrespectful as he forces the driver, handcuffed behind his back, into the police car, and more.

Listen to his tone, his words — and think: the elderly gentlemen in that passenger seat, on the way to the hospital, could be dying.  Luckily, he wasn’t — but who knew that at the time? 

“It don’t make no difference, ” the cop says to Mr. Hodge – ill, sick, setting in his buddy’s front seat there on the side of the road, as Mr. Hodge tries to explain that his friend was just trying to get him fast medical care. No wonder this is getting national news coverage:

Earlier this month, the Court forwarded its proposed changes to the State Bar of Texas for its consideration; by year’s end, the final version of the Amendments should be in effect.  Here’s a couple of things to ponder in all this:

1.  It’s not the Court of Criminal Appeals Deciding the Ethical Rules for Prosecutors. 

The ethical parameters of prosecutors are defined not by the highest criminal court in the state, the Court of Criminal Appeals, but instead by the Texas Supreme Court, as part of its rule-making authority. For some, this may be good news, given the recent hand slap that CCA’s Chief Justice Sharon Keller received from the Judicial Commission. 

2.  Comments to Rules aren’t the Same as a Disciplinary Rule Itself.  First, There’s Little Change to the Rule for Prosecutors. 

The main rule pertaining to prosecutors under the Texas Disciplinary Rules of Professional Conduct is Rule 3.09, “Special Responsibilities of a Prosecutor.” 

Here, things like it’s wrong to pursue a prosecution without probable cause and it’s wrong to fail in promptly and timely disclosing evidence to the defense that tends to show innocence or to mitigate guilty.  Sounds like this stuff should be so clear that a district attorney wouldn’t need this to be in writing (and subject to his/her loss of license for their violation) but we’ve seen how wrong that assumption has proven to be here in Texas.

Consider these examples: 

• in June 2010, DA Stephanie McFarland caught withholding evidence a second time (she’d already been caught once);
• in January 2010, Dallas DA was discovered to have told a police officer who to point out as the culprit when he took the stand; and
• in December 2009, a federal judge freed  Yolanda Madden after she had spent four years behind bars after it was shown that the district attorney had failed to disclose exculpatory evidence in her case. 
• There’s more of course — just click over on the “DA Watch” section of this blog as well as my Blogger blog. 

3.  While Comments Do Give Guidance, They are Specifically Not the Basis for Complaint

Elsewhere in the 2010 Amendments, the Texas Supreme Court also addresses prosecutors in Comment 16 to Rule 3.03, giving an example in an attorney’s duty to protect the integrity of the judicial system, “… a prosecutor’s obligation in a criminal case extends for the life of a wrongfully convicted criminal defendant, in that remedial measures could remove a wrongful conviction from the defendant’s record.”

Now, Houston Chronicle’s Rick Casey recently suggested that the new Rule changes mean prosecutors will be required to apply this Comment’s example to an expert witness who learned that his testimony was wrong — that the district attorney would be ethically required to move forward this new revelation. 

In a perfect world, maybe, but for a crafty district attorney?  Probably NOT. 

You’d think that they would do that just because it’s the right thing to do.  Right?  However, not only do we KNOW that prosecutors don’t want to re-open cases and help defendants they’ve put behind bars (just read this blog) but there’s also the legality that a comment doesn’t carry the same legal weight as a rule. 

As you can read in the Preamble of the Texas Disciplinary Rules, which is left unchanged by the Amendments (see a redline version here), comments “… do not, however, add obligations to the rules and no disciplinary action may be taken for failure to conform to the Comments.”

So, while Mr. Casey makes a great point, and it may seem like form over substance, the comment cannot form the basis of an ethical violation under the New Rules, and there’s just not that much difference in the revised Big Rule, 3.09, to make any D.A. lose any sleep tonight.

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 ….

And, yes, this South Texas municipal judge is facing felony theft charges. Judge Garza stands accused of putting his hand in the traffic fine till — the moneys collected as traffic fines from those who appeared before him for traffic violations — and using the fine money to pay off his personal credit card.

McAllen Judge Garza Has Pled Not Guilty to Theft of Traffic Fines

The La Joya Municipal Court is about 15 minutes drive from downtown McAllen, very close to the Texas-Mexico border. Judge Joe Henry Garza lives in the area, and today he’s out on a $10,000 bond.  He’s pled not guilty to a third-degree felony charge of theft by a public servant.

His position? He isn’t the one wo receives the money that comes into the city coffers.

Evidence Against Judge Garza

According to the probable cause documentation on file, the sheriff investigated and found three (3) separate examples of people (Mexican nationals) paying their traffic fines with money orders in Garza’s court, and this money then being used to pay Judge Garza’s personal credit card.  The Sheriff’s office became involved after an internal audit discovered $6500 missing from the municipal accounts.  Sheriff’s investigators purportedly traced the stubs from the money orders to Judge Garza. 

Wonder what happened when they paid their traffic fines in cash?

Police Chief Son’s Known Mental Illness Issues

The police chief’s son was known to have mental health issues.  His live-in girlfriend (and the mother of the Chief’s grandson), Misti Conaway, told Lancaster cops when they responded to her domestic dispute call earlier in the day that David Brown Jr., 27, was bipolar.  (She also told them that he had taken drugs that day, and was acting as if he were on PCP.)

School authorities already knew that David Brown Jr. had hit his 10-year-old son, and the local authorities were investigating the boy’s black eye as suspected child abuse. 

Seven hours before the tragedy, David Brown Jr. was seen brandishing a gun at the apartment complex swimming pool as he danced around, humming to himself, wearing only boxer shorts and sunglasses. 

Lancaster Cops Interviewed David Brown Jr. and Left Him There

When Misti Conaway called the cops, they went to the scene and left with Conaway and her two sons. 

They interviewed David Brown Jr., and they checked the apartment.  Today, these cops stand by their story that he seemed fine to them, not a danger to himself or others at the time.  He wasn’t arrested.  He wasn’t taken in as an involuntary commitment.   

Their actions are recorded on a dash cam video.  Reportedly, you can hear Brown yelling about the kids not reading their Bible …. One last thing before they left: they left a voice mail message for Chief Brown, telling him they’d stopped by his son’s place and everything was fine. 

David Brown Jr. Shot and Killed Two Before Dying in Gun Battle with Police

Within hours, David Brown Jr. took a handgun (assumedly the same one he’d been threatening folk with at the pool) and grabbed a rifle, and shot and killed a man driving into the complex with his girlfriend and two young kids, Jeremy Jontae McMillian, 23.

Brown Jr. then fatally shot Lancaster Police Officer Craig Shaw, 37. It’s no surprise that the next thing to happen in this sequence of events was David Brown Jr. dying in a shootout with police in the parking lot of the apartment complex.

It was Father’s Day.  Chief Brown had been on the job for 2 months.

Today, it’s still national news that the Dallas Police Chief’s son was killed in a gun battle with local police, after killing two men.  Chief Brown issued a statement on Tuesday.  It was gracious and expressed sincere condolences to both of the victim’s families.

Should Chief Brown Resign?

There’s lots of talk that Chief Brown will resign.  However, many see that as the wrong response.  Even the girlfriend of slain Jeremy McMillian doesn’t want this: she’s quoted as saying that Brown Jr.’s actions were those of an independent adult, and not to be attributed to the Police Chief. 

What About those Lancaster Cops?

Meanwhile, what about those Lancaster cops?  One has to wonder why Brown Jr. was left there that day, obviously suffering from some type of mental break — he’d been acting strangely all day. 

• Why didn’t they learn about Brown Jr.’s antics at the pool? 
• Why didn’t they find the handgun (the girlfriend told them one was there)?
• Why didn’t they take Brown Jr. in for evaluation?
• Was it because they were afraid that Chief Brown would be upset with them? 
• They made sure to touch base with the Police Chief by calling him on the phone to tell him about their visit.  Why do that?

You gotta wonder if David Brown Jr. would have been left there on Sunday if those two patrolmen weren’t so impressed with his dad being the Top Dog of Dallas Cops. 

Let’s hope their actions are fully investigated.

Sincerely condolences to the families of all those who died in this horrible tragedy.  Including especially Dallas Police Chief Brown.  

Sharon Keller Following the Best Defense is a Good Offense Approach

Keller’s response can be read online in two parts (Part One; Part Two) thanks to the Texas Lawyer.  Her latest salvo? A request that the Commission dismiss the matter in its entirety.

Immediately. The whole thing. That’s right. (She’s also appealing that $100,000 ethics fine that she’s been told to pay – the highest ethics fine in the State’s history).

Justice Keller: Allegations are Fiction

Apparently, Justice Keller believes that the charges she will be facing on Friday are “fiction” and that we should all just pooh-pooh everything that’s been filed thus far.

Even Judge David Berchelmann didn’t go so far as to write that the allegations were fictional when he basically let the Chief Justice off the hook in his findings from his fact-finding hearing last August.

Public Hearing – Standing Room Only

So, the hearing on Friday should be very, very interesting. It will be public. The examiners and Justice Keller’s attorney will present oral argument. We can bet it will be to a packed house.

After the argument, the 13 Commissioners will go behind doors to discuss and decide their decision. They will have three options: (1) remove her from elected office; (2) dismiss the charges against her; or (3) reprimand her (she gets cited as doing something bad, but keeps her job).

It’s Only the Most Powerful Criminal Judge in Texas, After All

Think of it. We’re only talking about the Chief Justice of the state’s highest criminal court here.  Is anyone else out there thinking Lady MacBeth (although the line’s really from Hamlet)?

“The lady doth protest too much, methinks.”
–W. Shakespeare, Hamlet (III, ii, 239)

That’s right.  A prosecutor in front of the bench being told she’s done something wrong.  The same thing, for a second time.

In 2007 DA McFarland Withheld Info of Two Witnesses in the Laura Ashley Hall  Trial

Stephanie McFarland did not prosecute the trial of Laura Ashley Hall all by herself, but  the 3d Circuit Court of Appeals did rule she ”acted willfully” when the prosecution did not disclose statements made by a witness that implicated the defendant — and in doing so, violated the trial judge’s orders.   She was also found to have held back evidence regarding a witness named Doug Conley during the sentencing part of the case (after the defendant had already been found guilty of the crime). 

Interesting that Stephanie McFarland was the attorney who interviewed the witness who gave the witness statement.  Still, way back then, records show that McFarland said it was just a mistake: nothing intentional.  Oops!

In 2006, McFarland Failed to Provide Resume of State’s Witness – Which Would Reveal Expert Lied

Austin district attorney McFarland has also been found to have hidden the CV (curriculum vitae) of a physician that was a witness in a felony case — doesn’t sound like a big deal, until you learn that the resume showed that the doctor had fudged on his credentials.  And by fudged, of course we mean LIED.

Texas Judge Charlie Baird ruled last week that because DA McFarland kept back the doctor’s resume, the defense did not have the opportunity to cross-examine this sneaky expert on his inflated resume and impeach his credibility.  And by cross-examine, of course we mean put the doctor who had the arrogance to lie about his background and experience in a criminal trial on the stand and “rip him a new one.”

In this case, a UT student name Danish Sheikh was charged and brought to trial by McFarland for choking his ex-girlfriend.  It was a very serious charge for a young man just starting out in life — and no matter what level of charge that is made by the state, citizens are supposed to get due process and a fair trial. 

Oh – and what did McFarland give as the reason that the defense team didn’t get the resume?  Well, she thought she did.  Oops!!  Right.  The Judge didn’t believe her. 

What Happened to the Defendants?

For Defendant Hall, the appellate court decided that hiding the witness statement (which dealt with the issue of who had dismembered the victim’s body) did not change the outcome of the trial.  So, no new trial on guilt versus innocence.  However, 3rd Court of Appeals did order a new sentencing hearing in the case on a finding that Stephanie McFarland and the other prosecutor in the case unfairly kept information about another witness in the punishment phase.

For Defendant Sheikh, the Judge has vacated Sheikh’s aggravated assault conviction and his five-year probation sentence.

What Happens to Stephanie McFarland?

So far, not much.  Apparently, she’s still working for the Travis County District Attorney’s Office and she’s still trying cases.  Of course, things may change soon.  For one thing, the Austin Criminal Defense Lawyers Association may be getting involved.  And defense attorneys will be asking that McFarland be recused from Hall’s new sentencing trial (duh). 

Fair Trial.  Due Process.  How can prosecutors disregard them?

Seems that someone might be wanting to look through other cases that this prosecutor has tried.  You gotta wonder what other evidence might be stuffed in boxes that defense teams and juries never saw.