Birthday edition

Today is the 3rd birthday for The Defense Rests and, once again, I'd like to thank everyone who has taken the time to read and comment on what they find here. By my calculation there have been almost 88,000 pageviews in the last year (I have no idea how many since I launched the blog since I just added the page view widget last summer) and around 148 comments (including my responses). I have no idea how many people have hit the "reaction" buttons, but I know it's too many to go back and count.

The four most popular posts of the last twelve months are:

• Blawg Review #288/Day of the Dead edition (Nov. 1, 2010)
• If you're living in a glass house (Dec. 20, 2010)
• Taking a sledgehammer to the First Amendment (Dec. 17, 2010)
• Blawg Review #307/Texas edition (Apr. 18, 2011)

I hope you continue to find what I've posted here to be interesting, informative or at least amusing at times. Please keep the comments coming - whether it's to agree with what I've written, disagree with what I've written or to let me know I'm an idiot (so long as it's not anonymous).

So, let the party begin!

A snitch in time

Peddling books

Over the past two weeks, John Nova Lomax at The Houston Press, has told us the incredibly bizarre tale of Denish Shah (also known as Dennis Shaw) who allegedly bilked folks out of their money by befriending them and shutting them off from everyone else. Mr. Shah currently is awaiting trial on a charge of two acts of assault of a family member.

But I'm not writing about Mr. Shah or his exploits. I was more interested in one of the sidebar stories that accompanied the article. It seems that Mr. Shah was sued by the family of a woman he once took a shining to. Mr. Shah allegedly beat the woman and abused and sexually assaulted her children.

Mr. Shah lost the civil case and a judgment of over $20 million was entered against him. No sooner was the ink on the judgment dry that Mr. Shah's attorney in the civil matter, Michael Phillips, announced that he was done with Mr. Shah and that he would be writing a book about his former client.

Mr. Phillips' book The Monster of River Oaks was published last summer.

Now even though Mr. Phillips claims not to have used any privileged information in writing his book, the entire affair seems more than a little dicey. The duty of an attorney is to represent his client and to act in his client's best interest. Abandoning a client after an adverse verdict and writing a book portraying your client as a monster hardly seems to fit the bill.  

"I can't tell you how many grandparents have come up to me emotional, thanking me for writing the book," he says. "They say that their daughters are going through relationships like this. One woman stopped me on the elevator and said she sent my book to Oprah."

Phillips claims the book is a warning to single mothers, whom he characterizes as being the most vulnerable members of our society outside of the extreme elderly. "They get run over. It's a free-fire zone on them," he says. "Extreme wealth, privilege and social standing may be no protection. Dinny was a hunter. Joan was the biggest game in town.

Phillips also claims to be the first person to have done something to stop Shah.

Our ethical duty to our clients extends beyond the actual representation. Our duty to hold their statements in confidence extends to death. Mr. Phillips duty wasn't to warn single mothers and grandmothers about his former client. His duty was to represent his client.

At what point did Mr. Phillips decide he wanted to write a book? At what point did he inform Mr. Shah of his intentions? Did his decision to dump his client and write a book affect his representation of Mr. Shah? And how in the world is calling your former client a monster acting in his best interest? 

"Unfortunately, there's always an appetite for what would purport to be the secrets of the rich and famous. Sadly, the lawyer who defended the guy, who stood in the middle of the courtroom and proclaimed that those children were lying, then tried to profit on essentially the salaciousness of selling the secrets of the rich and famous to the community.

"That is kind of insulting. It's not kind of insulting, it's damned insulting."  --  Jim Perdue, Jr.

Now I don't know Mr. Phillips. I know nothing about his representation of Mr. Shah. But I do have questions about the decisions he made after the jury came back.

As criminal defense attorneys we need to know unsavory details of our clients' lives. We need our clients to be upfront and honest with us when we discuss their case with them. That only happens when a client understands and believes that whatever he says in our office when the door is closed stays in that office for all eternity. Once our clients cease to believe that we will keep their secrets in confidence, our ability to represent them is compromised.

Mr. Phillips did none of us any favors. Of course he isn't the first attorney to write a book to capitalize on a representation - and he won't be the last. But every attorney who makes that decision brings into question whose interest he represents.

The sky is falling! Not.

Last night I ran across a blog post from a criminal defense attorney in North Texas. The post was written in reaction to the Scillitani case that I wrote about on Monday. The article stated that the Texas Department of Public Safety rewrote the regulations that govern breath testing in Texas under cover of night.

Very recently, (and apparently very quietly), the Texas Department of Public Safety relaxed its standards for the instrument certification.  The .02 agreement requirement is gone.  The multiple breath test specimen requirment is gone.  The requirment that the reference sample be maintained at a particular temperature?  Gone. 

The DPS actions immediately raise the question, why?  Why were the above requirements considered so vital to instrument certification for years no longer necessary to ensure a valid and reliable breath sample?   If this is supported by new scientific study that demonstrates the the requirement is not necessary to achieve consistent and valid breath test results, what are they?  Why have they not been publicized?  The technology behind the Intoxilzyer certainly has not changed. As a practical matter, this means that objective observers should have considerably less confidence in the validity and reliablility of the results of the Intoxilyzer 5000 when the standards for instrument certification are quietly stripped away.

That's not exactly true. The regulations (which can be found in 37 Texas Administrative Code, Section 19.4) were last amended in 2006 (Click here for the "old" regulations). No one took out the requirement that the breath test operator note the temperature of the reference solution because that requirement never existed.

Changes were made in the certification process for breath alcohol testing programs in 2006. The regulations were renumbered to make room for definitions.

Nowhere in the "old" regulations will one find a requirement that the two breath samples be within .02 g/210L of each other in order for the test to be valid. That "requirement" comes from the manner in which the machine is programmed to operate. The machine itself will invalidate a test if the two blows are more than .02 g/210L apart (at least if the reported results are more than .02 g/210L apart).

Likewise, there is no requirement that a breath test consist of multiple blows. That, too, has to do with the way in which the Intoxilyzer 5000 is programmed to operate.

I do find it disturbing, however, that, when discussing the requirement that the predicted and actual values of the reference solution be within .01, the regulations contain the phrase "or such limits set by the scientific director."

So, despite the proclamation that the sky is falling as a result of the Scillitani case, that is simply not the case. The issues of multiple blows and .02 test agreement are decided by the type of machine used to test the breath, not by Rule 19.4.

And, since Texas will (at some point) begin using the Intoxilyzer 8000, those questions will one day be moot.

An artist and a scientist

I read the other day that Ferran Adria, the father of molecular gastronomy, is closing the doors of his famed restaurant El Bulli. His workshop sat 50 for one dinner service a night - a service consisting of 30-40 courses and costing well in excess of $200.

I happened to be sitting in the living room flipping channels on the television when I stumbled upon the channel guide and noticed the Travel Channel would be re-airing the episode Decoding Ferran Adria from Anthony Bourdain's show. I had to watch.

Tony mentioned that he was always leery of Ferran Adria because, as an old-fashioned line cook, he was used to slaving over a hot stove in the chaos that is the kitchen of a busy restaurant. He was a chef. An artist. Ferran Adria was a scientist. Tony wanted to know if a scientist could be an artist.

The answer was a resounding yes. Mr. Adria looks at food in a different way. He wants to touch all of the diner's senses. His creations use science and technology to create food that stirs up memories in the diner. His food is both complex and whimsical.

Art + Food + Science = Gastronomy

In his cooking, Mr. Adria asks us what is a meal? He asked us what should a meal be? He wanted to know what can a meal be?


He deconstructed a meal and rebuilt it in a play of 32 acts. Each act told a story and brought forth a memory. He believed a meal should touch all of the senses - he told Tony that 70% of a plate is the scent. He was adamant that the pace and rhythm of a meal was of the utmost importance.


Watching Ferran Adria compose his symphony of tastes and smells and textures was like watching an artist at work - an artist who knew the science underlying each and every one of his creations. He is living proof that you can't have art without science, nor can you have science without art.

Book Review: False Justice

Jim Petro is a rock-ribbed Republican who is a former Attorney General of Ohio. He is the most unlikely person to get involved in the innocence movement -- but involved he is. In his book False Justice: Eight Myths that Convict the Innocent, Mr. Petro takes us on a journey that shows how innocent folks find themselves in prison and the struggle to exonerate them.

The eight myths to which Mr. Petro refers are:

1. Everyone in prison claims innocence
2. Our system almost never convicts an innocent person
3. Only guilty people confess
4. Wrongful convictions are the result of innocent human error
5. An eyewitness is the best evidence
6. Conviction errors get corrected on appeal
7. It dishonors the victim to question a conviction
8. If the justice system has problems, the pros will fix them

Mr. Petro spends a good deal of ink discussing the problems with eyewitness testimony. He points out that 25% of rape suspects are cleared when their DNA is tested against crime scene DNA prior to being indicted. He notes that 30% of witnesses choose one of the "fillers" in lineups.

In Manson v. Braithwaite, the US Supreme Court held that even if eyewitness identification process is unduly suggestive, the testimony will be heard if it meets a five point "reliability" test. Those five points are:

1. The witness' opportunity to view the suspect at the time of the alleged crime,
2. The witness' degree of attention,
3. The accuracy of the witness' prior description of the suspect,
4. The witness' level of certainty at the time of identification, and
5. The time between the alleged crime and the identification.

Ironically enough, research has indicated that the level of the witness' certainty at the time of the identification bears no relationship to the accuracy of the identification.

Another myth that deserves being addressed is this notion that somehow questioning the legitimacy of a conviction dishonors the victims of the crime. As Mr. Petro points out, if the person convicted of the crime is, indeed, innocent, that means the real perpetrator is still on the loose. A false conviction means that an innocent man suffers, a criminal walks free and other people may have been victimized.

Of course, because the book is also an autobiography, we are subjected to Mr. Petro's political exploits in stunning detail. But, I suppose, anytime the theme of your discourse is taking the other fork in the road, you have to set yourself for the great conversion. Just read the first half of The Autobiography of Malcolm X and you'll see what I mean. It is, however, just a minor quibble, because, no matter how Mr. Petro arrived at that fork in the road, he clearly took the right path.

As a postscript to the book, in December 2010, Dean Gillispie was once again denied a new trial.

Sex, lies and SEO

Just who is Jay Smith and why is sending me spam?

Hi Paul, We just posted an article, “10 Modern Criminals Who’ve Made a Killing”, I thought I'd drop a quick line and let you know in case you thought it was something your audience would be interested in reading. (http://www.criminaljusticedegreesguide.com/features/10-modern-criminals-whove-made-a-killing.html) 
Thanks!Jay Smith

When I typed in the URL at whois.net, this is what I got:

WHOIS information for criminaljusticedegreesguide.com :

[Querying whois.verisign-grs.com]
[Redirected to whois.networksolutions.com]
[Querying whois.networksolutions.com]
[whois.networksolutions.com]
Welcome to the Network Solutions(R) Registrar WHOIS Server.

The IP address from which you have visited the Network Solutions Registrar WHOIS
database is contained within a list of IP addresses that may have failed
to abide by Network Solutions' WHOIS policy.  Failure to abide by this policy can
adversely impact our systems and servers, preventing the processing of
other WHOIS requests.

To see the Network Solutions WHOIS Policy, click on or copy and paste the following
URL into your browser:

http://www.networksolutions.com/whois/index.jhtml

If you feel that you have received this message in error, please email us using the online
form at http://www.networksolutions.com/help/email.jsp with the following information:

Whois Query: criminaljusticedegreesguide.com
YOUR IP address is 198.171.79.36
Date and Time of Query: Thu Jul 28 19:24:48 EDT 2011
Reason Code: IE

My next step was whois.domaintools.com. Here's what turned up:

Registrant:
Mavens, LLC, Career
   ATTN CRIMINALJUSTICEDEGREESGUIDE.COM
   care of Network Solutions
   PO Box 459
   Drums, PA.  US  18222
   
   Domain Name: CRIMINALJUSTICEDEGREESGUIDE.COM

   Administrative Contact, Technical Contact:
      Mavens, LLC, Career                
      ATTN CRIMINALJUSTICEDEGREESGUIDE.COM
      care of Network Solutions
      PO Box 459
      Drums, PA 18222
      US
      570-708-8780
      
   Record expires on 04-May-2013.
   Record created on 25-Sep-2008.

   Domain servers in listed order:

   NS1.HOSTMONSTER.COM          74.220.195.131
   NS2.HOSTMONSTER.COM          69.89.16.

According to aboutus.org, the site is located in Canada and the contact entity is NetVision. On the NetVision site are links to a host of worthless sites with the option to view the site in Dutch.

The website promotes itself as a guide to finding careers in criminal justice. But no matter which career you decide you are interested in, the same three schools are featured: Saint Leo University, American Intercontinental University and Arizona State University. Both SLU and AIU are online schools offering associate's degrees.

So, Jay, I'm sorry, but I have no interest in linking to your website, your article or anything else you're peddling.