The volunteer army

From: Bill Reed
Sent: Thursday, June 23, 2011 11:31 AM
To: Criss, Susan
Subject: FW: Needing volunteers for Galveston County "No-Refusal" weekend for July 1,2,3 @ Dickinson Police Department: 8pm-4am 

Judge: are you available? So far Lonnie and Ellisor are in. Grady is out of town. thanks, BR

*****

From: Bill Reed
Sent: Wednesday, August 24, 2011 9:59 AM
To: Ellisor, John; Cox, Lonnie; Mallia, Wayne; Criss, Susan; Dupuy, Christopher; Grady, John
Subject: looking for volunteers for No Refusal Weekend for Labor Day: 9/2/11-9/4/11 

Any takers? Thanks, BR

Looking for volunteers?

Or, are you looking for judges who will blindly sign a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit? Are you looking for judges who buy into your notion that a person accused of driving while intoxicated has fewer rights (or at least less-important rights) than a person charged with any other offense? Are you looking for judges who agree that we should do whatever it takes to coerce people into pleading guilty to DWI?

You see the DA's Office is hand-picking its judges. They're going back to the judges who have signed, without question, warrants in the past and who are more than willing to continue to do so. The last thing the state wants is a judge who might just question this practice.

No. The deck must be stacked against the citizen accused. Even if we have to make an absolute mockery out of a document we all took an oath to uphold.

What, you think these judges are actually reading these affidavits and asking themselves if the officer has but forward enough facts to support his arrest decision?

From: Chris Paschenko
Date: Friday, Dec 31, 2010 12:01 pm
Subject: DWI arrests
To: Judge Susan Criss 

We[re] you working and in what capacity when [L.B.] and [T.R.] were arrested? I'm told it was DWI. Also seeking on the record comment.
Thanks.
Chris

*****

From: judgecriss
To: Chris Paschenko
Sent: Fri, Dec 31, 2010 12:39 pm
Subject: Re: DWI arrests
I was the judge at the station last night there to sign warrants worked 8pm to 4 am. Rules do not allow me to comment on the cases. Signed LB blood search warrant. Other waived need for warrant.

What else needs to be said about the mechanics of a No Refusal Weekend. There you have a judge telling a reporter that she was at the station "to sign warrants."

Not to review them. But to sign them.

Sadly, most folks don't care. They see nothing wrong with jabbing needles in someone's arm because you think they might have been intoxicated. Hey, we're out there keeping you safe. And these are the same folks who are more than willing to suffer any indignity at the hand of TSA employees just so they can board a plane. Hey, gotta keep us safe from terrorists.

Maybe we're just so self-absorbed that we simply don't care if the government is intruding on someone's rights - so long as we're not the one being trampled upon. As long as it's then that the government is after it's okay. The only problem is that at some point there will be no more them to protect you from the coercive power of the state. And, by then, it will be too late.

Police union targets city official who spoke out against police brutality

It would seem that Houston city councilwoman Jolanda Jones is paying the price for speaking out against the police. Ms. Jones has spoken out repeatedly about the problem of police brutality in Houston. She also raised concerns about the way the department operated its crime lab.

Now the Houston Police Officer's Union is striking back. Union vice president Ray Hunt has sent a letter to Harris County District Attorney Pat Lykos asking her office to look into whether or not Ms. Jones was practicing law without a licence last month.

This isn't the first time Mr. Hunt has been involved in lodging a complaint against Ms. Jones. He is the one who pointed out that Ms. Jones put her city office phone number on her business card. He alleged that she was using city resources to operate her private law firm. Ms. Jones was cleared of those charges when the DA's office announced there wasn't enough evidence to prove any wrongdoing.

The latest allegations stem from two legal documents signed by Ms. Jones after her license to practice law had been suspended for her failure to pay her bar dues and occupational taxes on time.

This fight isn't about Ms. Jones' ethics. This fight is about whether or not the city is going to turn a blind eye to police brutality. Earlier this year I sat with Ms. Jones at a forum on police brutality. She was the only elected city official to appear at the town hall meeting. Her willingness to speak out in such a forum spoke volumes.

Mr. Hunt and his group are involved in the classic misdirection play. Instead of focusing on the issue of police brutality, Mr. Hunt would rather throw mud at Ms. Jones in an attempt to discredit her. If you can't debate the issue on the merits, go for the dirt.

The problem with Mr. Hunt's tactics is that the cat is out of the bag now. We've seen the videos. We know that  the police beat suspects for no reason. They do it because they can and because they think they can get away with it. And for a long time they did. The city turned a blind eye to the problem - as long as it could be made to go away.

Mr. Hunt is playing the public like a little child. We all know the punishment for contempt of cop. I've had clients who have been punched, kicked or tased multiple times. If there was no video camera or eyewitness willing to testify, it was just a perp's word against a police officer. And guess who judges and juries believed.

Maybe Ms. Jones has skirted the rules. Maybe she hasn't acted ethically. Maybe she did practice law without a valid license. Those are issues with which Ms. Jones must deal. But none of that changes the fact that the police beat suspects and Ms. Jones called them out on it.

Don't fall for the misdirection play. Keep your eye on the ball.

Williamson County DA dragged kicking and screaming toward justice

John Bradley did his best to keep Michael Morton locked up behind bars. Even while presiding over the (emasculated) Texas Forensic Science Commission, the Williamson County District Attorney fought efforts by Mr. Morton's attorneys to conduct DNA testing on evidence introduced during in 1987 trial. Mr. Morton was charged with and convicted for the murder of his wife.

But it was all to no avail.

Mr. Morton is a free man once again, having been freed from the state penitentiary after Travis County prosecutors linked evidence found at the scene of the Morton murder with evidence found at another murder. That's right. Not Williamson County prosecutors. Prosecutors from down I-35.

There are also allegations that Williamson County prosecutors withheld evidence that might have exonerated Mr. Morton at trial. Apparently no one in the office thought they needed to turn over evidence that one of Ms. Morton's credit cards was used in San Antonio two days after her death or that someone cashed a check by forging her signature nine days after she was murdered.

Details. Details. Details. I mean, you can't possibly expect prosecutors to tie up every last loose end can you? We need to move these cases along. We need closure, dammit!

Bexar County Judge Sid Harle offered Mr. Morton his apologies after setting him free.

"You do have my sympathies," Harle said. "We don’t have a perfect system of justice, but we do have the best system in the world."

Unless you're behind bars for over two decades for a crime you didn't commit, I suppose.

Of course Mr. Bradley sought to deflect criticism for his role in keeping an innocent man behind bars. We all know that Mr. Bradley is very interested in seeing that justice is done. Just take a look at his record while turning the forensic science commission into a coffee klatch.

According to a story in the Texas Tribune, Mr. Bradley was wrapping himself in the flag and acting the part of the hero after Mr. Morton's release.

Williamson County District Attorney John Bradley said that the new developments - which he said were a lightning bolt type of discovery - warranted a reversal of Morton's murder conviction. 

"It is my just, as district attorney, to make sure that justice is done," Bradley said after the court action today.

Well, I guess it's too late to worry about whether justice was served when Cameron Willingham was murdered by the state of Texas for a crime he didn't commit. After all, he was already dead, what good is justice when you're six feet under?

Mr. Bradley has some nerve to characterize the evidence the way he did after he fought tooth-and-nail for six years to prevent DNA testing. Where was his desire to see justice done then?

Tragedies such as Mr. Morton's are what happen when we worship at the altar of finality rather than justice.

Morton Findings

See also:

"Free! But damn! 25 years," Gamso for the Defense (Oct. 4, 2011)

"Belated justice in Williamson County for innocent man delayed for years by DA opposition to DNA testing," Grits for Breakfast (Oct. 3, 2011)

"Morton to be freed from prison today," Austin American-Statesman (Oct. 3, 2011)

"John Bradley called too biased to fairly evaluate DNA innocence claim," Grits for Breakfast (Aug. 17, 2011)

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.