Accident rates decrease after red light cameras taken down

You'd never know it if you relied on the Houston Chronicle's website, but splashed on the front page of yesterday's paper was an article announcing that the removal of red light cameras has resulted in fewer traffic accidents at the 50 intersections where the cameras were mounted.

According to data released by HPD, the number of traffic accidents at those intersections has declined by 16% in the five months since voters rejected the cameras. The data compared the number of accidents in the five months prior to the removal of the cameras (June 15-Nov. 14, 2010) and the number of accidents between November 15, 2010 and April 16, 2011.

According to the Chronicle:

The drop in accidents surprised Houston police administrators who say a possible explanation is the unusually dry weather during recent months has made driving conditions safer. They also wonder if years of electronic monitoring have made Houstonians better, if not more cautious, drivers.

Maybe it never occurred to the police that accidents increased at the intersections due to the number of motorists slamming on their brakes as they approached yellow lights.

Assistant Chief Brian Lumpkin said he had assumed accidents at those intersections were increasing since HPD is still receiving raw data from the camera vendor indicating motorists were running lights with much greater frequency at many intersections. The HPD records show accidents decreased at 32 intersections, increased at 21 and stayed the same at 17.

Well, Mr. Lumpkin, the conclusion is quite obvious -- place officers near those intersections and stop motorists who run red lights. We all know the most popular pastime in Houston is seeing how many cars can get through an intersection when the light's yellow. We all know the number one rule of driving in Houston is you don't take off at the intersection when the light turns green - you wait for that one last car to go through the red light.

The other thing that Mr. Lumpkin's analysis doesn't take into account is the number of red light camera tickets that officers rejected upon review before issuing the civil citations. Estimates are that HPD monitors rejected almost 40% of the proposed violations.

On Nov. 14 soon after a referendum to shut down the system passed, the city stopped issuing violations but was ordered by the courts to keep the cameras and road sensors up. HPD took an immediate $10 million hit from the department's anticipated share of ticket revenue for the remainder of this fiscal year, as the city ended a lucrative system that issued nearly 800,000 tickets and collected almost $44 million in fines since going online in September 2006.

The red light camera scam was never about increasing safety on Houston's streets. It was always about increasing revenues without having to pay for officers to patrol the intersections. The latest data is pretty damning proof that the original premise behind the cameras was faulty.

Hanging on the telephone

It is far from unusual in these days of Gestapo-like tactics by the police against motorists accused of driving while intoxicated for an officer to fax an application for a warrant to draw blood without ever appearing before the judge.

On "No Refusal Weekends," many volunteer prosecutors judges will sit at home by a fax machine waiting for the "fill-in-the-blank" warrant applications to be faxed over, signed and faxed back without a care in the world. Interestingly enough, while a municipal court will not accept an appearance bond or appeal bond if it is faxed (because they have to be notarized), a judge may gladly accept a faxed affidavit in support of a search warrant -- if the purpose is to tie someone down and draw their blood.

In order to avoid the testy situation of lying before a notary or a judge in quest of a search warrant, police officers have taken to signing their affidavits within the presence of another police officer. Since no oath was administered, the officer requesting the search warrant did not commit perjury and the courts don't care.

That was, until the Tyler Court of Appeals handed down its opinion in Aylor v. State, No. 12-09-00460-CR (Tex.App.--Tyler, 2011). In Aylor, a police officer stopped a motorist and, believing he was driving while intoxicated, requested a blood sample. When Mr. Aylor declined the request, the officer called the station and told his sergeant what had happened. The sergeant then filled out an affidavit based on the arresting officer's statements and faxed it to a judge who administered an oath over the phone. That's right -- over the phone. Nevermind the fact that the judge could not ascertain with any certainty who was on the other end of the line. Forget that the judge had no way to know from the caller's appearance whether he was telling the truth of not. In other words, throw all logic out the window.

The trial court was not troubled by this. The appellate court, on the other hand, was a bit troubled by it.

The current state of Texas law then, as alluded to in the above quoted dicta by the court of criminal appeals in Smith, is that a physical, personal appearance is necessary, either before the magistrate, or before someone who is qualified to administer oaths. See Lowry, 297 S.W.2d at 850-51 (citing Sullivan, 83 S.W. at 422-23); Hughes, No. 07-10-00096-CR, 2011 WL 561497, at *6-7.  Therefore, we conclude that an affiant must be physically present in front of the magistrate or officer authorized to administer oaths when swearing to the facts in his affidavit to support a search warrant.  We further conclude that where the oath was taken solely over the telephone and not physically in front of any officer authorized to administer oaths, the presence requirement is not met.  In the instant case, the oath was administered by the magistrate to Sergeant Seyer by telephone.  The record does not show that Sergeant Seyer took the oath in front of some other officer authorized to administer oaths, and the affidavit is not notarized.  Moreover, the State did not argue at the trial court, and does not argue here, that the arrest or any evidence seized during the search was obtained by the officers acting in good faith reliance on the warrant.  See Swenson v. State, 2010 WL 924124, at *2-4.  Consequently, we cannot conclude from the record before us that the presence requirement was satisfied or that compliance with the presence requirement was excused.  Accordingly, we hold that the trial court erred in concluding that the warrant was valid and in overruling Appellant’s motion to suppress.

What's troubling about the Court's opinion, however, is the statement that the State never argued that the officers were acting "in good faith" when executing the search warrant. Was the Court saying that all would have been forgiven if the officer had testified that he was acting on the belief that the warrant was valid?

If that is the case, Aylor doesn't provide relief so much as a playbook for the police on how to obtain illegal search warrants and execute them by using the magic words good faith.

Driving while black remains a reality in Houston

New data released by the Houston Police Department shows that black motorists are more likely to be stopped by police than any other ethnic group in the city. While blacks make up 23% of the city's population, they made up 33% of all traffic stops in 2010. Latinos, who make up 44% of the city's population, made up 32% of all traffic stops. White motorists accounted for 30% of the stops.

According to the Houston Chronicle, "experts" discount driving while black as being the cause of the disparity.

Clete Snell, who chairs the criminal justice department at the University of Houston-Downtown, said many minority residents feel they have been singled out because of the number of stops in their neighborhoods. 

"Police tend to patrol more frequently in African-American neighborhoods, and in minority neighborhoods in general, and tend to make more stops in minority neighborhoods,“ Snell said.

Apparently Mr. Snell is not concerned that there are a disproportionate share of blacks in the criminal justice system and that the vast majority of defendants who cannot afford to post a bond tend to be black or Latino.

Surprisingly enough, Gary Blankinship, the head of the Houston Police Officer's Union, denies the existence of racial profiling and former HPD Chief, and current city councilmember, C.O. Bradford blames it on a few "bad apples."

Racial profiling, like police brutality, is not an individualized phenomenon. It is bred into the culture of police departments all across this country. Police brutality comes from a culture in which the questioning of "authority" is considered a sign of disrespect. Maybe that's how it works at the police station -- but that ain't reality on the street. But police culture doesn't account for such subtleties.

Racial profiling has always played a role in police work - going back to the days of Jim Crow when the police were used to enforce the laws of segregation. The primary role of the police was to keep whites and blacks separate, or, more accurately, to keep blacks on "their side" of town. That ethos still holds true today as large swaths of our cities and towns are segregated.

Until we examine the role that law enforcement has played in preserving inequality in this country, police brutality and racial profiling will continue to endure - no matter how much sensitivity and diversity training we require of the boys in blue.

Continuing down that slippery slope

On the morning of September 11, 2001, a total of 2,977 folks lost their lives in the terrorist attacks that felled the World Trade Center and damaged the Pentagon. The 19 men who carried out the attacks were killed in the course of the crimes.

Osama Bin Laden emerged as the primary suspect behind the hijackings. Evidence pointed toward the involvement of al-Qaeda. Bin Laden made admissions over the years that he was responsible for the attacks.

Under the law of parties, Bin Laden was as culpable as the men who actually hijacked the planes and crashed them into the buildings. He could have been charged with a myriad of crimes in several different jurisdictions.

The US Navy Seals who carried out their mission last week did not possess either an arrest or a search warrant. They broke into a dwelling displaying weaponry. They killed an unarmed man. (I say unarmed because the story surrounding what really happened changes from day-to-day and if there were some proof that Bin Laden was armed we would have seen photos or heard about it by now. The very fact the government keeps changing its account is enough to tell me that he was unarmed at the time of the shooting.)

The men who raided the compound intended to kill Bin Laden according to statements made by the US Attorney General Eric Holder:

‘The operation in which Osama bin Laden was killed was lawful,’ he said. ‘He was the head of Al Qaeda, an organization that had conducted the attacks of Sep 11. He admitted his involvement and he indicated that he would not be taken alive.'

‘The operation against bin Laden was justified as an act of national self defense,’ he said.
It was lawful to target an enemy commander in the field and the mission was conducted in the way that was consistent with US laws and values, Holder testified, adding that it was a ‘kill or capture mission.’

‘If he had attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that. And therefore his killing was appropriate,’ Holder said.

I'm not quite clear on how the killing of an unarmed man in another country by US citizens is "consistent with US laws and values." I understand that Mr. Holder is but a mouthpiece for the administration, but for an officer of the court to suggest that anything about this mission was consistent with our laws is disingenuous at best and outright hypocrisy at worst.

Jamison Koehler had an interesting post on Monday dealing with Americans overseas who seem to think that the Constitution protects them when they do something they're aren't supposed to do. It doesn't. Just like your parents' rules didn't protect you when you spent the night at a friend's house, our laws do you no good should you decide to smuggle dope into another country.

But where Mr. Koehler got off track was when he posited that Bin Laden wasn't entitled to any due process rights under the US Constitution at the time he was killed.

But I don’t agree with Kennedy when he uses this argument in connection with the extrajudicial killing of Osama Bin Ladin in potential violation of international law. While the U.S. Constitution does in fact apply to the actions of the American seals who raided Bin Ladin’s compound, and to the President who authorized that raid, it is a stretch to argue that Bin Ladin himself enjoyed any “due process” rights under the U.S. Constitution.

Bin Laden was wanted in the United States for crimes committed on American soil (or in American airspace). The raid was conducted by US military forces. We're not talking about some trigger-happy Pakistani soldier here, we're talking about a raid authorized by the President of the United States (and if I remember correctly, he took some oath in which he promised to abide by the Constitution).

The issue is not where the killing took place. Bin Laden was in American custody when he was killed. He was accused of a crime in the United States. He was entitled to his due process rights.

Limited government, Perry-style

I guess this is why I'm not a legislator in Austin. I just don't see the connections that these geniuses do. With school districts being forced to lay off teachers due to the budget crisis in Austin, a couple of folks seem to think they've found the answer to our problems.

State Rep. John Davis (R-Houston) says Texas charges luxury yacht buyers too much sales tax. That 6.25% is a real bitch, apparently, to the scads of Texans looking to buy multi-million dollar boats to play around in. The sales tax is the most regressive tax the state has yet to devise yet the yacht-buying set thinks it's too much to be asked to pay more than $18,000 in sales tax for a boat worth over a million dollars. Boo, freaking, hoo.

And the fair-haired one, Gov. Rick Perry has determined that an emergency exists and that the only way to fix it is to pass tort reform with a "loser pays" provision. State Rep. Brandon Creighton (R-Conroe) has proposed legislation that would force the loser in a lawsuit to pay the other side's legal fees. Now let's just forget the fact that most tort litigation is brought by folks who can't afford to hire an attorney on anything other than a contingency fee basis. Let's also forget that in a "pro-business" environment, the only check on the corporate world's unending quest for maximizing profit is the courtroom. This proposed legislation will shut the doors of the courthouse for all but those who could afford to hire an attorney.

This is the theory of limited government espoused by Gov. Goodhair. Limit the ability of the government to serve the vast majority of Texans, shield corporations by cutting off access to the courts for millions of Texans and increase the tax burden on poor Texans by providing tax relief to millionaires.

It's all relative

It's the middle of the night. Police surround a house. At the designated signal the front door is kicked in and officers storm the dwelling. The people inside the house see nothing but high powered flashlights and guns. They hear strangers shouting and threatening to shoot.

The officers continue through the house until they find the object of their raid. The man is unarmed. Instead of taking the man named in the warrant into custody they take him into another room and shoot him once in the chest and once in the head.

Maybe the evidence was overwhelming that the suspect was guilty as charged. We'll never know for certain because the police played the role of judge, jury and executioner. The dead man was, by law, presumed innocent. He was entitled to due process of law. He was entitled to a trial before a jury. He was entitled to consult with an attorney before making any statements once taken into custody. He was entitled to confront the witnesses against him and to put on evidence in his behalf.

Those rights were snuffed out in the blink of an eye.

What would your reaction be? What if he were charged with armed robbery? Aggravated assault? Murder? At what point is it acceptable to deprive the accused of his rights under the law? What if wasn't a citizen of the United States? What if the police officers were serving a warrant from another country?

The Constitution makes no distinction between the rights afforded to citizens and noncitizens. The Constitution makes no distinction between the rights afforded to a man accused of murder and a man accused of DWI.

Osama Bin Laden was accused of masterminding a criminal act of horrific magnitude in the United States. Mr. Bin Laden was unarmed at the time he was killed. No matter how heinous the crime of which he was accused, Mr. Bin Laden was entitled to his due process rights.

But the Navy decided to take justice into its own hands. The deprivation of rights is never anything to be cheered. Particularly by men and women who swore to defend the Constitution. If Bin Laden is not entitled to the protections afforded by the Constitution, who's next in line to lose their protection?

Up in arms about an illegal search? How about a Miranda violation? Didn't get your Brady material? Did you cheer the news of a killing in Pakistan? A killing that violated a man's rights?

We don't defend an individual as much as we defend the Bill of Rights. We don't defend what a person may or may not have done so much as we defend his rights under the Constitution. Sometimes it can be distasteful, but even the worst among us deserves his rights. That's what we do.

This is supposed to a nation of laws; but I suppose that's all relative.

A wandering mind

A few random thoughts after a 4-hour drive to Dallas this evening...

If you're going to open a business by the freeway and paint a big sign - you might want to make sure you got the spelling right. I drove by a joint near Corsicana called Wisper's Cabaret.

How does anyone know for certain that their taillights are working? I passed a Ford SUV with no working taillights. I don't think the driver had a clue they weren't working. The only reason I know mine work is because I see a reflection of the back of my car when I leave the office.

The Shock Wave (a double loop roller coaster at Six Flags) doesn't look nearly as big or scary now that I'm grown. I rode it quite a few times growing up and it just looked big. I drove right by it tonight and it didn't look nearly as inimidating.

I was informed tonight by the night clerk at the hotel that I looked like a Kennedy. The reddish-brown hair, ruddy complexion and blue eyes must be the giveaway. She also asked me if I was here for the home-schooling convention. That would be a "no."

Is there an American male singer with a better voice than Johnny Cash? I grow more convinced everyday that there isn't.

I don't think the pierced lip impressed the judge too much. Of course, what do I know? I'm only the lawyer. I'm sure you are a much better judge of what plays in the courtroom than me.

My smartphone is more powerful and cheaper than the first computer I bought. It boggles the mind just what we can do with a cell phone.

If the purpose of the mission was to kill Osama Bin Laden, just say so. It would be a lot less painful than the evershifting story of what may or may not have happened.