Filling in the blanks

June 25, 2008 

"The Galveston County Criminal District Attorney's Office is coordinating another no-refusal weekend for Friday July 3 and Saturday July 4, 2009. Dickinson Police Department has graciously agreed to host the event again this year. Judge Lonnie Cox will be our judge for Friday night and Judge John Ellisor will perform those duties on Saturday night. The hours of operation will be from 8:30 PM on July 3, 2009 until 4:30 AM on July 4, 2009 and against at 8:30 PM on July 4, 2009 until 4:30 AM on July 5, 2009... 

I have attached the search warrants and affidavits for search warrants. The search warrant returns can be done immediately after the blood draw is performed." 

-- Galveston County Assistant District Attorney Joel H. Bennett

That's right. We've got your search warrant and affidavits right here. They're ready for you to fill in the blanks and type 'em up. No need to make an officer actually recite the facts in a case that gave rise to his belief that the driver was intoxicated at the time of driving. Nope. Just plug in your name and the motorist's name and we're in business.

I understand prosecutors and police wanting fill-in-the-blank affidavits, it allows officers to spend more time on the streets harassing citizens policing. But what's the judge's excuse for signing a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit. Somehow I'm not thinking that would cut it if a district judge were trying to decide whether or not to allow the police to enter someone's house to search for evidence of a crime. In fact, I know it wouldn't. But, then again, we're only talking about a misdemeanor. What's the big freaking deal, anyway?

I mean, all we're asking to do is to perform an invasive procedure on a motorist based on our hunch that she might be intoxicated and the fact that she exercised her right to refuse a breath test. Well, that and we can strap her down if she resists. But, c'mon, why all the hoops?

January 2, 2011 

"The morning of December 30, 2010, Fox 26 News began to air footage preparing the public for our initiative, as I addressed the public and presented a "warning and awareness" that our intentions were to increase public safety by removing DWI offenders from our roadways on Galveston Island and a Zero Tolerance No Refusal approach method would be in effect to combat this problem... 

"With the assistance of the following agencies the effort was a success:

• UTMB

• Galveston County District Attorney's Office

• District Judge Lonnie Cox

• District Judge Susan Criss

• County Judge John Grady

• The Galveston Police Department Command Staff

• The Galveston Daily News

• Fox 26 News

• Texas Highway Patrol

"Over the last month I have been in correspondence with the listed agencies and the initiative was proven a success. 

-- Chad Powers, Galveston Police Department

What could possibly be more clear as to the role of the judges in these assaults on the Fourth Amendment? It's not the job of a judge to assist in the arrest and/or prosecution of anyone. It is the role of the judge to sit as a neutral arbiter in a legal proceeding. When the police begin thanking judges for assisting in their initiatives, it's time to start questioning the role of those judges in our criminal (in)justice system.

Since most of these DWI cases will be filed in county court as misdemeanors, two of the judges (Grady and Dupuy) reviewing warrants on suppression hearings are two of the judges who volunteered to approve these fill-in-the-blank form affidavits. And just how do you think those rulings are going to go?

Slowly but surely the judiciary is being subsumed into the trial division of the district attorney's office. Maybe it makes for great copy during campaign season. Maybe the voters like it. You know, the voters who either blindly mark R or D on their ballot or think that judicial candidates should sound like they're running for sheriff or DA.

It's time to occupy Houston

This comes from the organizers of Occupy Houston

On Thursday, October 6th There will be adignified and peaceful protest in Houston similar to the one on Wall Street.

The purpose is to awaken our consciousness and the consciousness of ourbrothers and sisters within the corporate and political institutions that havespun out of control. Centuries of deference to an outside authority is bearingbitter fruit. Our environment, our food and our communications are growingtoxic. We have become a country where the truth of compassion has given way tothe delusion of competition. Many of our brothers and sisters in business andpolitics are caught by the blind forces of greed and they are suffering. Thisis causing great suffering for everyone else. We as “consumers” are also caughtby these blind forces. The desire to acquire and the fear of loss create angerand hatred, suspicion and jealousy. These are the forces which feed and nurturean increasingly global economy that is destroying the earth’s capacity tonourish us.

We can save ourselves if we are willing to take a peaceful and compassionatefirst step. Fear is what got us into this mess, so we should remember thatthere is nothing in the entire cosmos which is worthy of fear. All of thebogies we torment ourselves with are products of our own perception. All badactions are rooted in suffering and the only antidote for suffering iscompassion. We cannot fight the powers of greed with force. Jesus said it. TheBuddha said it. Muhammad said it. Our own life experience has shown it. We mustremember this and dispel anger and hatred. Within our heart's refuge we arealways free. We enslave ourselves by the notion of possession. We truly ownnothing. Our bodies, family members and friends, our “property,” memories – allempirical things are subject to change. Once you think you possess something,the inevitable result is attachment, you are under a psychological yoke towhatever forces which may deprive you of your desire.

Serenity, compassion, fulfillment and cooperation are the vehicles which canlead us out of darkness. This is where we can draw the strength to protest inpeace and dignity. We are young and strong and able to lend a hand in waking upour sleepy neighbors to the blind and wonton destruction of our commonancestor. At any rate, it will be a cool experience on a nice fall day and anice opportunity to get together on something that can benefit us all. Here isa link if you would like to know more:

http://occupyhouston.org/

The protest will commence with an assembly in Market Square Park at 8:30am followed by a march to the JP Morgan Chase Tower at 9am. Following an hour-long rally, there will be a march to Hermann Square (in front of City Hall) at 10am to being the occupation.

Ask not for whom the whistle blows

For the past two decades the breath alcohol testing program in Harris County was run by Lone Star College (formerly North Harris Montgomery College). But no longer.

Yesterday Harris County commissioners voted to award the contract to the Texas Department of Public Safety. Harris County District Attorney Pat Lykos has been accused of pressuring commissioners to make the change in retaliation to Lone Star's hiring of Amanda Culbertson as a technical supervisor.

Ms. Culbertson, as you may remember, testified this summer about problems with the Houston Police Department's breath testing vans. She testified after being subpoenaed by a local defense attorney (and served by my brother). In her testimony she alleged that the higher-ups in the HPD crime lab had turned the lab into a hostile work environment because she dared to speak up about the problems.

County commissioners did Ms. Lykos no favors by deferring responsibility for the change to Ms. Lykos. She might want to get the license plate number of the bus she was thrown under.

Knowing what I know about Ms. Lykos, I don't find it a stretch to believe that she was behind the move. It would appear to be par for the course (for more on Ms. Lykos and her gang that can't shoot straight, check out Murray Newman's Life at the Harris County Criminal Justice Center blog).

The other day I wrote that I had a few problems with local criminal defense attorneys coming to Ms. Culbertson's defense. I still find it disturbing and short-sighted. Ms. Culbertson was a true-believer until she ran across problems with the batmobiles that she couldn't defend.

But, Ms. Culbertson was not a whistleblower. She never went to the media to let them know about problems with the breath test machines in the vans. She never volunteered that information at trial. The only reason she testified about those problems in open court was because Dane Johnson had made an open records request and had obtained e-mails documenting the problems. She had no choice but to testify that the machines were unreliable in that environment.

If Ms. Culbertson left HPD because she felt intimidated for raising questions about the batmobiles, then it's shame on HPD for allowing it to happen. But if we're supposed to be up in arms because the county decided not to renew the contract with Lone Star, let me off the train. It would seem that we're forgetting that what the government giveth, the government taketh away.

When your job depends on government largesse, you must understand that what's here today may be long gone tomorrow. So maybe it was retaliation and maybe it wasn't. That's just politics.

Should I bring a pen along?

Last August I wrote about documents I received through an open records request for documents related to No Refusal Weekends in Harris County. See here, here, here and here.

Today it's time to take a trip down the Gulf Freeway to the island to what Galveston County officials have been up to when it comes to making a mockery out of the Fourth Amendment.

June 27, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated preparations for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 8 pm through 4 am at the Dickinson Police Department. (Special thanks go to Chief Morales for his hospitality.) Bill has enlisted the cooperation of Judges Lonnie Cox, John Ellisor and Christopher Dupuy to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

The DA's Office has "enlisted the cooperation" of judges to "approve and sign" search warrants authorizing blood draws. As I have stated many times before, if the state is "enlisting" judges to participate in this spectacle, the deck is already stacked against anyone accused of driving while intoxicated. And, yes, that Christopher Dupuy.

Hmmm... how might that conversation go?

Prosecutor: "Judge, I was wondering if you'd like to volunteer to approve and sign search warrants for blood draws during our No Refusal Weekend?"

Judge: "Ordering a blood draw on a misdemeanor case? That's insane."


Prosecutor: "I'll take that as a no. Next!"

August 31, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 11 pm through 4 am at the Dickinson Police Department. Bill has enlisted the cooperation of Judges John Ellisor, Christopher Dupuy and John Grady to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

Please note, no one is talking about reviewing warrant applications. The judges are there to approve the warrants and subject motorists to an intrusive procedure. This is limited government? Oh, now I understand, they were talking about limiting the authority the judiciary has over the police, not the authority of the state over the individual. That makes so much more sense now.

An application for a search warrant should be reviewed by a neutral and detached magistrate. Once a judge accepts the pitch from the DA to be a part of the team for a No Refusal Weekend, that judge loses any claim to being detached. Either he was asked to participate or he volunteered - either way, the judge is far from neutral.

And despite "fill in the blank" warrant applications that are long on conclusions and woefully short on facts, these "neutral and detached" judges are more than happy to take pen to paper to authorize the shredding of the last remnants of the constitution.

Danish fat tax is the biggest loser

This past weekend Denmark became the first country to place a tax on fatty foods. Worried that Danes are getting fatter, the outgoing government imposed a tax on the saturated fat content of food items. Over the past few weeks, Danes have been hoarding butter, bacon and precooked foods.

The stated aim is to reduce the demand for foods with high levels of saturated fats. Or, maybe the aim was to find a new source of revenue for the government.

Either way, the fat tax is a bad solution looking for a problem.

The purpose of a tax is to raise revenue, not to promote social policy.

If the tax is designed to reduce consumption of saturated fats, it won't be the revenue raiser the government hopes. If the tax is designed to increase revenues, it won't make people forgo fatty foods. The goals are mutually exclusive.

To raise revenues the tax must be low enough that it won't discourage Danes from buying fatty foods. If the tax doesn't alter Danish food buying habits then it will have failed its social purpose.

On the other hand, to discourage Danes from eating fatty foods, the tax must be high enough to make folks look for less expensive alternatives. If Danes begin to look at the marginal cost of that pizza or slab of bacon when deciding what to buy, the tax will not bring in the projected revenues.

And then there's Germany and Sweden - both within driving distance of most Danes. Sure, you might have to drive a couple of hours out of your way, but you can still purchase fatty foods without being taxed for it across the border. And that kind of behavior is a double-whammy to Denmark - not only will the tax not reduce the intake of fatty foods, another country will be enjoying the revenue from increased sales of food items.

All in all, an idea that leaves a sour taste in everyone's mouth.

Thinking before speaking

Why would some local criminal defense attorneys be singing the praises of ex-HPD crime lab technical supervisor Amanda Culbertson?

Ms. Culbertson left the beleaguered HPD crime lab earlier this year as a result of what she called retaliation on the part of department employees after she raised questions about the accuracy and reliability of breath test machines in the departments BATvans.

Now Harris County Commissioner's Court is looking at whether to renew a contract with Lone Star College to manage breath test machines in the county or turn over their machines to the DPS. Adding drama to the events is the fact that Ms. Culbertson now works for Lone Star College (along with one of her former colleagues Jorge Wong).

Tyler Flood, Mark Thiessen and Brent Mayr spoke at the most recent meeting of the county commissioners to voice their belief that the county is retaliating against Ms. Culbertson for recently speaking out about problems with the BATvans.

Mr. Mayr told county commissioners that the county's technical supervisors are "committed to justice" and to seeking the truth. He said that he believed the contract was in jeopardy because the DA's office was more concerned about chalking up convictions than seeking justice.

Referring to technical supervisors as scientists is stretching the truth just about as far as it can be stretched. Technical supervisors are hired to maintain breath test machines in Texas. Their job is to ensure that the machines are working and to remove malfunctioning machines from service. They must also testify in criminal proceedings that the particular machine was working properly and that the breath test was conducted per Texas guidelines.

They are not paid to be objective. They are not paid to take a critical view of the breath test machine. They are paid to work with police and prosecutors to obtain convictions against motorists accused of driving while intoxicated.

They are no more committed to justice than the rulers of Yemen or Syria.

By singing Ms. Culbertson's praises these attorneys are telling future jurors that she speaks the truth; that she views science as impartial; that she wants to make certain that innocent folks are convicted of DWI.

Is that the image you want jury panels to come into the courtroom with? Are you sure you want to puff up the person who will testify - without any evidence other than a number on a test slip - that your client was intoxicated at the time she was driving?

I understand realpolitik and that the enemy of your enemy may very well be your friend -- but never forget the fox who offered to carry the gingerbread man across the river.

Let the county switch from Lone Star College to the DPS. It doesn't really matter. In the end the police, the technical supervisors and the judges are all working to see that your client is convicted. Maybe Ms. Culbertson had some interesting things to say about the batmobiles -- but it doesn't mean she's a friend of the defense.

Death without due process

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

The United States has killed two of its own. On Friday, under orders from President Obama, a US military airstrike resulted in the death of Ayman al-Zawahri, an American-born cleric who had become a vocal critic of US policy. Killed alongside Mr. al-Zawahri was Samir Khan.

In July, U.S. Defense Secretary Leon Panetta said al-Awlaki was a priority target alongside Ayman al-Zawahri, bin Laden's successor as the terror network's leader.

The Yemeni-American had been in the U.S. crosshairs since his killing was approved by President Barack Obama in April 2010 — making him the first American placed on the CIA "kill or capture" list. At least twice, airstrikes were called in on locations in Yemen where al-Awlaki was suspected of being, but he wasn't harmed.

Mr. al-Zawahri and Mr. Khan weren't arrested for anything. They weren't charged with anything. They were never indicted. They were never tried before a jury of his peers. They were never convicted of any crime against the United States.

There was no due process of law. Mr. al-Zawahri and Mr. Khan, were deprived of their most basic rights because they dared to voice criticism of US policy in the Middle East.

President Bush (the Younger) created a shitstorm when he ordered suspected terrorists and their supporters to be held indefinitely in prison. People were also up in arms (at least those who knew what was going on) about the expanded powers given to the government to spy on its own citizens. But neither of those policies holds a candle to ordering the death of American citizens without affording them due process of law.

As flawed as the Troy Davis situation may have been, at least he was afforded his day in court. That's more than Mr. al-Zawahri and Mr. Khan were given. If los federales had the goods on Mr. al-Zawahri and Mr. Khan, why not obtain an indictment? Why not seek to extradite them? Why not put them on trial? If their deeds were serious enough to warrant death - then let's see the evidence. What are you afraid of, President Obama?

Is it because their "crimes" involved being vocal critics of your foreign policy? Is it because of the words they spoke and wrote?

Thus far President Obama has caught flak for the state of the economy on his watch. Now it's time he catches it for ordering the deaths of two American citizens and depriving them of their constitutional rights. When President Obama was sworn into office, he took an oath to defend the US Constitution.



President Obama, you just violated that oath. You were not only part of a conspiracy to deprive two American citizens of their constitutional protections - you were the man in charge of the conspiracy. In depriving them of their constitutional rights, you also conspired to murder the two men.

See also:

"Ron Paul calls US killing of American-born al-Qaida cleric in Yemen an 'assassination.'" Washington Post (Sept. 30, 2011)

"Obama praises al-Awlaki killing," Time (Sept. 30, 2011)