The cost of thinking outside the box

I'm no fan of Pat Lykos.

Her job is to infringe upon the rights of the citizenry as zealously as the courts will allow. She is part of the mechanism by which the state seeks to keep folks under its thumb.

But there are a couple of areas in which Ms. Lykos got it right.

Now, with apologies to my colleague, Murray Newman, I don't mind the chaos emanating from the 6th floor of the Criminal (In)justice Center. Chaos in the prosecutor's office is a good thing for the citizens of Harris County. So long as prosecutors are fighting with one another, with the District Attorney and with law enforcement, they aren't waging total war against our clients.

Ms. Lykos was right when she changed her office's policy on drug residue cases. Let's face it, the war on drugs has been a colossal failure (it makes Vietnam seem like a good idea). Even State District Judge Michael McSpadden acknowledges its failure.

"No one respects law enforcement more than I do, but they're wrong about this. I want them out there going after the career criminals, the sex offenders, the people who pose a real threat to our society, and not someone who has a residue amount of drugs." - State District Judge Michael McSpadden

There are far too many folks in the Harris County Jail on possession cases. There are far too many folks in the penitentiary on possession cases. Most of these people are addicts. Locking them up in jail does no one any good. The addicts aren't receiving the treatment they need and there's no room in the inn for those who really need to be put away.

No, local law enforcement doesn't like the policy. They want to go out and arrest everyone they possibly can, lock 'em up and forget about them. That's fine and dandy - but where are you going to put them? Maybe it's the fear that with fewer drug arrest, jobs and overtime might vanish. Maybe it's the fear that the public is fed up with the overcriminalization of American life and desires a bit of sanity.

Ms. Lykos also understands that the stigma associated with a DWI conviction is a little bit out of whack when compared to the consequences befalling those convicted of some violent crimes. DIVERT may have been a good concept but the execution is poor (not to mention illegal). The reason given by the DA's Office for DIVERT is so that folks arrested for driving while intoxicated can get treatment to help prevent them from doing it again. The reality is that Ms. Lykos thought that too many people were "getting off" with time served and a fine. What better way to force them into probation than to make the minimum sentence 30 days in jail?

Need I even mention that the judges who signed off on the program are violating their constitutional duty to consider the full range of punishment in a DWI case? But, then, most of those on the bench are part of the DA's "trial court" division.

Sometimes change comes from the most unexpected agents. Just as it took Nixon to open China, maybe it took Lykos to bring some sense to drug prosecutions.

Creative thinking in public education?

Possession means actual care, custody, control of management. 

-- Texas Controlled Substances Act Sec. 481.002(38)

Possession is different than use. Possession is different that "under the influence."

To possess an item is to exert some degree of control over a tangible object. The tangible object, such as a controlled substance, is necessary to prove possession. After all, you can't have control over something that no longer exists.

For instance, one may be in possession of marijuana at the time he is smoking it. But, as he smokes the marijuana, the drug breaks down in various components and metabolites in his body. At the same time, the marijuana itself is destroyed by fire. After smoking marijuana one may be "under the influence" of it. One may even be intoxicated by smoking the marijuana, though that would be difficult to prove without a test showing the concentration of the metabolites in the body and expert medical testimony regarding the effects of marijuana in the concentration found in the body.

The State of Texas defines marijuana (please, someone, explain to our legislators that no one else spells marijuana with an h) as "the plant Cannibis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture or preparation of that plant or its seeds."

Nowhere in the definition of the hippy lettuce does the state allege that the metabolites left in the body after ingesting marijuana is marijuana.

Texas defines controlled substance is "a substance, including a drug, an adulterant and a dilutant listed in [the Controlled Substance Act]."

Once a person absorbs a controlled substance, Xanax, for instance, that substance is broken down by the body into various metabolites - a term not used in the definition of controlled substance. One can be intoxicated if he ingests a controlled substance (or marijuana) and loses the normal use of his mental or physical faculties as a result. However, one is not in possession of the controlled substance once it has been ingested - because the controlled substance itself no longer exists.

In fact, you can make the argument that once someone is "under the influence" of a drug, that the drug is in control of the person and not the other way around. How else could one be "under the influence?"

But try explaining that simple concept to a school administrator who declares that being under the influence of a drug on a school campus is the same thing as possessing the drug on a school campus. I recently had a school administrator tell me, with a straight face, that, per district policy, that if a student is under the influence of Xanax, for instance, that student is considered to be in possession of the drug; and, since possession of Xanax is a state jail felony, that the student under the influence of Xanax is subject to expulsion because their conduct amounted to a felony.

Huh?

I have yet to find a statute in the Texas Penal Code or in the Health and Safety Code that makes it a felony to be under the influence of Xanax (unless, of course, the person was driving a vehicle with a child or was in an accident that resulted in serious bodily injury or death to another person).

Just something to think about.

Stuffed to the gills

Forget about all that 6th Amendment nonsense about the right to counsel, Harris County has decided that's not nearly so important as cramming as many pre-trial detainees into the Harris County Jail in order to coerce guilty pleas.

From: Armand, Stephanie (DCA)
Sent: Friday, May 20, 2011 2:50 PM
To: DC Criminal Coordinators (DCA)
Cc: DeLeon, Sisto (HCSO)
Subject: Contractual Logistics Transfers
Sent: Friday, May 20, 2011 2:50 PMTo: DC Criminal Coordinators (DCA)Cc: DeLeon, Sisto (HCSO)Subject: Contractual Logistics Transfers 

Good afternoon,   Due to jail overcrowding, pre-trial inmates with a future date of 35 days or over are transferred to outlying jail facilities in Newton and LaSalle County.      The inmates will be returned to Harris County Jail, two weeks prior to the setting in the court.     Video Conferences are available at both of these facilities to allow the defense attorney to visit with his/her client.         Defense attorneys may contact one of the following individuals to arrange the video conference: Lt. J.D. Clay @ 713-755-8434 or 713-755-8425 Sgts. C.D. Minshew or F. Dlouhy at 713-755-8420 Or Deputy Station at 713-755-1188 or 713-755-1189   Please convey this contact information to the defense attorneys.    This information is also available on the Coordinator’s Resource Webpage under Contractual Logistics Transfer Procedures.       Thank you in advance for your assistance in this matter.
 
Stephanie Armand Business Process Manager Administrative Offices of the District Courts 713-755-5704

Keep in mind that we aren't talking about people who have been found guilty of anything. These are the folks that are supposedly innocent unless proven guilty. These are the folks who are unable to post bond. These are the folks that most people don't give a rat's ass about.

But they're being transported all over the state because Harris County refuses to do anything to address the underlying problem of jail overcrowding -- punitive bonds.

And then there's HB 1173 that would allow counties with populations over 3 million people to extend the time they can hold a suspect without a probable cause hearing from 24 to 36 hours. That's just what we need here in Houston -- there's not enough room at the inn as it is and now we're going to allow the state to hold a citizen in jail an additional 12 hours.

Of course, if it's a bad bill related to criminal justice you know it must be sponsored by Sen. Joan Huffman. Interestingly enough, the fiscal analysis indicates that there should be no additional cost to the state (understood) or to local government (?). Just how many pretrial detainees are being transferred out of the county to make room for the new blood over on Baker Street?

Here's an idea for our legislators in Austin -- how about mandating the issuance of citations for Class B possession of marijuana cases? Confiscate the contraband, issue a citation with a promise to appear and go on about your business. It's going to be cheaper than shipping detainees out of the county and it might just allow Harris County to take care of its business when it comes to holding probable cause hearings within 24 hours.

Slow and steady wins the race

I recently handled a dope case in which the police claimed to have found one rock of cocaine in his vehicle. The officer, after cuffing my client and placing him in the back of his patrol car, conducted a warrantless search of my client's vehicle in violation of Gant.

During this illegal search, the officer found what he described as a "small beige piece of rock" on the floorboard of the vehicle. Using his handy Scott Cocaine Test Kit, the officer noted the rock turned blue, indicating the test was positive for cocaine.

According to the Scott Company's website:

Scott Company Drug testing products are Colormetric Field Tests for the presumptive identification of narcotics, illegal drugs and controlled substances.  The chemistry of the reagents found in these tests is of the same type relied upon by forensic chemists in laboratories to detect and identify illicit drugs & controlled substances. We have placed these reagents in better, more accessible packages that allow them to easily and safely used in the field by law enforcement officers. 

Though test accuracy is subjective contingent upon the composition of the substance being tested, we certify our test kits to be no less than 99% accurate. To date, there is no colormetric drug test kit (suitable for field use) produced by any manufacturer that is completely 100% accurate and immune from either inconclusive or false positive readings. 

We were set to argue our motion to suppress some five months after my client was arrested.

On the day of the hearing I got a call from the prosecutor handling the case telling me they were dismissing it. The state wasn't dismissing the case because the prosecutor came to the realization that my client's constitutional right against unreasonable search and seizure, the state was dismissing the case because the lab who tested the rock found in my client's vehicle said it wasn't cocaine.

In the lead up to the suppression hearing, I had another prosecutor tell me that the search was good and that he would offer my client two years in prison in exchange for a guilty plea.

I don't know what disturbs me more about this case: the fact that no one from the DA's office notified me of the lab results until five months after my client's arrest or that a prosecutor was more than willing to send my client to prison for two years without any proof he had broken any law.