Congratulations Rosemary: For being Travis County’s First Female DA

Congratulations, Rosemary.  Taking the reigns of such a large and political county takes a lot of experience and will likely require a sincere amount of finesse.  I wish you well, and am confident you will maintain the high-level of integrity that Travis County already has.

As a criminal defense attorney, I really appreciate your offices’ policies on discovery and willingness to look at each case and the individual, unique set of circumstances that it brings to the table for consideration.  Not all cases can be handled with a cookie-cutter approach, and not all cases should be handled in that matter.

Welcome to the helm! I look forward to working with you and those in your office.

For anyone who missed it, this link shows the swearing in of the new District Attorney.  And below is a photograph of the new DA from recent months.

Killer Cop: Caught on Video

This story is all over the world by now and many people are outraged, and reasonably so.  I must first say, however, that rioting and destroying property and injuring others does not help the matter and, in fact, only makes those who are crying out for support and seeking justice seem that much more unreasonable… so please, stop the violent protests and use the proper channels… there are thousands of supporters around the country and globe, just like me, who want to see that justice is done.

This story involves the shooting of a suspect, who appears to be handcuffed while BART Police Officers were investigating an incident.  It is not yet clear whether the officer was reaching for a Taser or other tool on his belt and inadvertently grabbed his gun (negligent homicide) or if he intentionally grabbed his weapon and fired, killing the suspect (murder).  That fact may never be truly known, but by reviewing the videos from every possible vantage point and interviewing all the witnesses available, it is possible to ascertain that fact.

However, one of the blogs that I enjoy visiting belongs to Carlos Miller and is titled Photography is Not a Crime.  On this site, Mr. Miller has edited the video that has flown around the world and managed to take a photographic still of the incident… it shows the suspect’s hands behind his back, the officer holding is gun, and the reactions of shock and fear on others faces.  Carlos has also reduced the speed of the video to 50%.  Below is the photo and both it and the video are available at the above link.

This story is going to be one to watch as it develops and see what happens.  We already know the officer has resigned, but how the city reacts and how other law enforcement agencies respond, as to training, is critical.  As a former cop, I cannot see any justification for this shooting, as I do not see any resistance by Oscar Grant, now deceased.  The best the officer can hope for is that he did act negligently, thus reducing the amount of intent and thus lowering the possible punishments for his crime.

However, as a Texas attorney rather than one in California, I am not well-versed in what this officer may face as punishment in California.  But I want to urge those outraged by this or any similar incidents… please, direct the anger and rage to a positive end… further death and destruction is not the way to resolve this or get justice for Oscar Grant.

Underhanded Politics or Police [Mis]conduct in Elgin?

Elgin Police Department, a small community in Bastrop County, Texas, which has been known for various issues of corruption over the years, is once again in the spotlight.  This time, for the firing of one of its highest-rated officers, Steve Ou.  From information gathered through various internet sources, Officer Ou has consistently posted one of the highest if not the highest number of narcotics arrests for Bastrop County.  This is not to say he is overzealous but simply that he is doing his job as required by the State.  And, when his statistics are measured against those of other officers in the county, it is easy to see that Officer Ou could become a target, as he has always taken his oath seriously.

In December, 2008, what began as a routine traffic stop ended in a high speed pursuit and felony evading charge for the Driver.  This was reported and charged by the Bastrop County Sheriff’s Office.  According to reports, this call also involved information that gunshots were fired which resulted in a cooperative response of other officers, including Officer Ou.  During this incident, Officer Ou’s use of a club, as defined by the Texas Penal Code, to break a window on the suspect vehicle was not in accordance with Department policy, though I have not seen a written policy at the time this entry was drafted, and do not know whether such policy exists or is merely a convenience raised by The City of Elgin to justify their smear campaign against Officer Ou.

The most important point to remember is that none of us were present at the time of this incident.  All that we have to rely on is a video and the testimony of all parties involved.  Secounds feel like hours when under the high-stress of a situation like those faced by officers.  As a former Williamson County Deputy, I personally can make that statement.  It is that information and training that helps me to understand cases as they relate to all parties involved and why suspects and officers may respond the way that they do.

Officer Ou has, as required by his State duty as a peace officer, filed a felony complaint against both  Detective Dezarn and Sergeant A.J. Molinari, with the Bastrop County Sheriff’s Office, but it is not clear what became of those charges.  So, although there is a presumed "thin blue line" among police officers not to charge each other, Officer Ou was above that sort of double-standard.  Further, Officer Ou was involved in an arrest of an Elgin City Councilman’s son for Burglary of an unoccupied residence, so he was definitely known to those in power not only in Elgin but also in Bastrop County, through the Sheriff’s Office.

In no way am I charging that corruption in Bastrop County is responsible for Officer Ou’s termination, but I firmly believe that it could be a contributing factor, especially given the fact that Officer Ou has taken a stand against what he deemed to be illegal conduct by those entrusted to fight against it and further those who are related to others in power in the community where he worked.

In the video reported by Fox News Austin, the City Manager comments that Officer Ou’s behavior "is a perfect example of what is not acceptable" (using the club to shatter the window)… but consider:

  • Known felony in progress (evading)
  • Possible shots fired (in the CAD call from the Dispatch?)
  • Cover of Darkness
  • One officer from Bastrop with a drawn weapon

All of the above factors contribute to the totality of the circumstances and assuredly, breaking a window should be the least of the City’s concern when it comes to the investigation of this stop, as I believe Officer Ou was well within his rights and exercised control in not doing more than shattering a window.

This is definitely one to watch in the news.

Senate Bill 261, amending DWI laws in Texas, is FRIGHTENING and Must not become Law

Senate Bill 261 as proposed is available for review and must not pass as it is written!

This bill must not pass as it takes away constitutional rights of every motorist in Texas.  It would require that blood draws SHALL be taken after an injury accident.  It reduces the amount of injury currently required from serious bodily injury to simply bodily injury.  Further, and even more egregiously cops could have blood taken if anyone other than the suspect is transported for "medical treatment" or if they have been arrested for DWI in the past.

Currently, serious bodily injury is defined as follows:

Texas Penal Code 1.07(a)(46):  "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or any protracted loss or impairment of the function of any bodily member or organ."

vs

Texas Penal Code 1.07(a)(8) which defines bodily injury "as physical pain, illness, or any impairment of physical condition."

Further, the proposed bill would allow someone arrested for a DWI or similar offense in another state to be subjected to having blood taken, regardless of what happened to that case.  So, if the case was dismissed… blood  is drawn.  If the case was reduced, blood is drawn.  And most outrageous of all, if the person was found not guilty … blood is drawn.

If one cannot see the absurdity of this proposed law in Texas and the great number of constitutional rights that are given up, then that person must be asleep or so apathetic that they should not be allowed to participate in organized society.  Yes, I realize that is a strong statement, but this proposed law is outrageous and must not pass the Texas Legislature as written.  Even a substantially similar form of the bill would be threatening.

There are so many undefined terms in this proposed piece of legislation that it should terrify anyone reading this and every citizen of Texas, who does not want their DNA and other medical information smeared into State files should start a letter writing campaign immediately to their State Representatives urging that they Stop Senate Bill 261.

To make that easier, CLICK HERE TO FIND OUT WHO REPRESENTS YOU and urge him or her to VOTE NO on this legislation.

 

Marijuana possession and use Decriminalized (in Massachusetts)….

Finally! The country is beginning to wake-up (at least in Massachusetts) and realize that possession of small amounts of marijuana is no worse than possession or use of alcohol, if that bad!  In Massachusetts, the voters by a 65% to 35% margin passed a change to state law that only makes possession of marijuana a civil penalty with a $100.00 fine.  There is no longer a criminal penalty, threat of jail, or threat to future job prospects attached to possession, if it is a small amount.  Read the complete article here.

Under the marijuana decriminalization law, offenders who are caught with an ounce or less of marijuana get a ticket for a civil violation, but are not criminally charged. Juveniles have to pay the $100 fine and attend a drug abuse counseling course, or the fine will be increased to $1,000.

Further, it seems that law enforcement in Massachusetts is having difficulty with this change, not because they are wanting to arrest these small-time users / possessors, but because they do not have a way to force a person to identify themselves and they do not have a citation with the proper "checkbox" on it for this civil violation.

While the latter part of this sounds ludicrous to me (write it into the other box or ignore it), it also amazes me that Massachusetts does not have a law similar to that in Texas for Failing to Identify Oneself to a Police Officer:

Sec. 38.02. Failure to Identify.
 
(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
 
(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
 
(1) lawfully arrested the person;
 
(2) lawfully detained the person; or
 
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense….
I will be the first to admit that I am not a Massachusetts lawyer and as such, do not know what alternate ways law enforcement may have to obtain someone’s identity.  But, if that is truly a problem, passing a law similar to the one above from my state is definitely a viable option. 

But, I am far from believing that Texas legislators will ever wake-up and pass a similar law.  However, officers could stop wasting resources and making arrests for nominal amounts of pot, weed, maryjane, 420, or any other name you want to call the pretty green plant.  I will remain hopeful that one day this will change, but for now, I realize we, as Texas residents, will still have to be careful of how we possess our pot and where we keep it, if you choose to do that… and no, I’m not recommending that anyone break the law!

However, as a parting thought, the picture below is one that I find entertaining but also quite true. I hope you enjoy this as much as I did.