Thursday, May 26, 2005

New Texas UCW Law

A person is presumed to be "traveling" under the unlawful carrying of a
weapon statute if the person is: (1) in a private motor vehicle; (2)
not otherwise engaged in criminal activity, other than a Class C
misdemeanor that is a violation of a law or ordinance regulating
traffic; (3) not otherwise prohibited by law from possessing a firearm;
and (4) not a member of a criminal street gang, as defined by Section

David Finn's Note: This is only a presumption, but it should make a big difference in the number of Texans arrested and prosecuted each year for unlawfully carrying a weapon. The presumption would not apply to convicted felons because they are otherwise prohibited by law from possessing a firearm.

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Plea Racket Bill Passes

The following new laws are in effect Sept. 1:

1. No prosecutor may "initiate or encourage an attempt to obtain from an unrepresented defendant a waiver of the right to counsel," or even "communicate with a defendant who has requested the appointment of counsel."

2. No court may "direct or encourage the defendant to communicate with the attorney for the state" unless the court advises the defendant of the right to counsel and the procedure for obtaining counsel and the defendant has been given a reasonable opportunity to obtain counsel.

3. "If the defendant has requested appointed counsel, the court may not direct or encourage the defendant to communicate" with the prosecution.

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The CSI Factor-Jury Trials

Defense, Prosecution Play to New 'CSI' Savvy
Juries increasingly are expecting TV-style forensicsBy Jamie Stockwell

May 22, 2005

HINGTON - A Prince George's County jury would not convict a man accused of stabbing his girlfriend to death because a half-eaten hamburger, recovered from the crime scene and assumed to have been his, was not tested for DNA.

In the District, a jury deadlocked recently in the trial of a woman accused of stabbing another woman because fingerprints on the weapon did not belong to the suspect. An Alexandria jury acquitted a man on drug-possession charges in part because a box containing 60 rocks of crack cocaine that he was accused of tossing from his car during a traffic stop was not tested for fingerprints.

Prosecutors say jurors are telling them they expect forensic evidence in criminal cases, just like on their favorite television shows, including
"CSI: Crime Scene Investigation." In real life, forensic evidence is not collected at every crime scene, either because criminals clean up after themselves or because of a shortage in resources. Yet, increasingly, jurors are reluctant to convict someone without it, a phenomenon the criminal justice community is calling the "CSI effect."

"There is an increased and unrealistic expectation that every crime scene will yield plentiful forensic evidence," said Alexandria Commonwealth's Attorney S. Randolph Sengel, who talked to jurors after the drug trial. "As a result, we spend time now explaining to juries the absence of evidence." And when interviewing potential jurors, Sengel said, he and his team of prosecutors have "recently taken to reminding them that this is not 'CSI.' "

The shows have had an effect on courtrooms nationwide, according to lawyers, judges and jurors. Some prosecutors are calling experts to the witness stand simply to explain to juries why forensic evidence might be absent. Defense lawyers are exploiting the lack of scientific proof to plant doubt, even when there are eyewitness accounts, confessions or other compelling evidence.

Growing body of anecdotal evidence
Leon Dempsky understands the influence that crime shows can have on juries. The Arlington defense lawyer says he will tweak his closing arguments based on rudimentary knowledge of forensics that jurors might have picked up from watching television.

"If someone breaks into a house, and the police don't have the suspect's fingerprints, I'm going to argue that there are no fingerprints," Dempsky said. "If a woman is raped, but there are no bruises and no DNA, then I'm going to argue that, too."

It is not known how many cases have been affected by such crime shows in trial preparation, tactics or verdicts. But there is a growing body of anecdotal evidence, and in more than a dozen interviews, prosecutors and defense lawyers in the Washington region cited specific cases in which they believe the demand for forensic evidence influenced the outcome -- because jurors told them so after trial.

"I find myself bringing it up when picking a jury," said Jennifer Pollard, an assistant commonwealth's attorney in Alexandria. "I try to point out that it's entertainment and not real life."

Pollard's boss, Sengel, said jurors have learned through watching crime shows that "these tests can be done and should be done even in routine cases and that the results will be ready right away," he said. "If we don't meet those expectations, they're instantly skeptical."

Not just 'CSI' effect
Kate Fisher, a spokeswoman for CBS, which airs "CSI," said producers of the show would not comment on its effect on jurors and in courtrooms "because they are not lawyers or judges. They are in the entertainment industry."

Michele Nethercott, a public defender in Baltimore who serves as co-chairwoman of the forensic committee for the National Association of Criminal Defense Lawyers, said she frequently hears prosecutors complain about the "CSI" effect and its apparent hindrance to obtaining convictions. But something else might also be influencing juries, she said.

"While undoubtedly there's this 'CSI' effect, there might also be more awareness because of the many recent DNA exonerations and the problems with eyewitness testimony," she said. "Back in the late 1980s and early 1990s, when DNA came on the scene, you really needed a hearty sample, like a quarter-size. Now we're talking nanograms. . . . You can swab a drinking glass and get saliva cells, and so these days, it's inexcusable if those things aren't tested."

But it's not realistic to expect that every item at every crime scene will be collected for testing, said Paul Ferrara, the director of Virginia's state forensic labs. Of course, if an officer brings in a large bag filled with beer cans, cigarette butts, fast-food wrappers and other trash, everything will be analyzed, he said.

If we don't analyze every piece of evidence, then we're asked, 'Hey, why didn't you check this?' " he said, adding that in 1989, the state labs processed 37 cases. This year, the estimate is closer to 3,700. "Your average citizen sees that kind of stuff on 'CSI' and says, 'I know you can do that. I see it on TV.' But on television, they take a long shot case and in an apparent matter of hours, a good result is available."

Ferrara said many of his employees have testified in cases in which no forensic evidence is introduced. They are called to the witness stand solely to explain the process to juries and the reasons definitive results are not always available.

Most Thursdays at 9 p.m., Virginia Adams is in front of her television, drawn to the latest exploits of the beautiful and sharply dressed crime-lab technicians who star on "CSI."

Adams, 60, follows as the characters investigate violent crimes and identify suspects through the analysis of blood spatter, fingerprints and microscopic hairs and fibers collected from crime scenes.

So when Adams was selected last month to sit on a jury in one of Pollard's cases in Alexandria, she listened intently as the prosecutor outlined the crux of the burglary case: Five fingerprints that lab tests concluded belonged to the defendant were left inside the apartment he was accused of ransacking.

Case closed.

"If it hadn't been for those clear prints, I would've wondered whether the police had done their job," Adams said, adding that she counts herself among the estimated 27 million viewers who tune in every week to the original "CSI," set in Las Vegas. Other shows, including "Forensic Files," "Law and Order" and two "CSI" spinoffs, set in New York and Miami, also deal with forensics.

Adams and the 11 other jurors found Jerry Brown, 41, guilty of grand larceny and burglary and recommended to the judge that he be sentenced to almost five years in prison.

In many ways, Adams represents the modern juror, someone who is aware of the significance of forensic evidence and holds a strong belief in the power of science to solve whodunits. Forensic evidence usually includes DNA, fingerprints, cast imprints of tire marks or shoes, the matching of bullets to a gun and any other samples that can tie someone to a crime scene.

"Those who watch 'CSI' believe they know more, and in some cases, they do know more. That's the bad side to this 'CSI' effect," said Joshua Marquis, a prosecutor in Oregon who serves on the board of the National District Attorneys Association. "There's this highly unrealistic expectation that, one, DNA will exist at all the crime scenes, and two, that it will make a difference."

"People would not stay tuned to the show if they had to wait two or three months to figure out if there was even a DNA match, because that's how long it usually takes," he said.

'Explosion' of interest in schools
But despite the apparent courtroom frustrations delivered by the shows, they also have triggered enormous interest in college and high school-level forensic programs across the country.

"There's been an explosion," said M. Lee Goff, chairman of the forensic science program at Honolulu's Chaminade University. Four years ago at his university, 15 students were enrolled in the undergraduate program. Now there are 100.

"That is very gratifying, and a lot of them came in because of 'CSI,' " said Goff, who, as one of eight board-certified entomologists in North America, is frequently called to testify in cases across the country. He also serves as a technical adviser to the "CSI" shows filmed in Las Vegas and Miami.

Judge C. Phillip Nichols, who since 1992 has heard cases in Prince George's County Circuit Court, said that so much interest in forensics, be it among students or jurors, leads to a more informed population, more able to understand the often mind-numbing, complex criminal cases.

"Forensic evidence is pretty compelling stuff," he said. "When you're dealing with the rule of science, you don't want to be on autopilot, but there is that degree of comfort."

And criminals are learning new ways to cover their forensic tracks. They watch "CSI," too.

Staff writer David Snyder contributed to this report.

2005 The Washington Post Company

David Finn

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Wednesday, May 25, 2005

DWI Breath Test: To Blow Or Not To Blow

When faced with that question, here's what a Texas Panhandle DA decided.
This recent story was written by The Associated Press.

Panhandle DA faces DWI charge
The Associated Press

Another Panhandle district attorney has run afoul of the law.

Clay Ballman, district attorney for Hutchison and Hansford counties, faces a misdemeanor charge of driving while intoxicated.

Rick Roach was the district attorney for five Panhandle counties when he was arrested on drug and weapons charges in January.

Ballman was arrested late on May 12 after Borger police found his car stopped in the middle of a residential road, Borger police Chief Jimmy Adams said.

Adams said Ballman refused to take a field sobriety or breath test. He was released on a personal recognizance bond authorized by state District Judge William D. Smith.

Ballman´s attorney, Doyce Mallett, did not immediately return a call seeking comment Wednesday.

Ballman was arrested after he allegedly was involved in an accident and left the scene. The driver of the other car called police on her cell phone while following the car that hit hers, police said.

No court date has been set.

Some residents were calling Wednesday for Ballman to be removed from office.

"I don´t understand how he can prosecute for drinking and driving when he was drinking and driving," said Josh Smith of Borger.

Roach, who was arrested on four federal drug and weapons charges, resigned the same day he pleaded guilty to a drug-related weapons charge in February. He is awaiting sentencing, federal prosecutors said.

On Tuesday, Roach was indicted on state charges of possession of methamphetamines and cocaine with intent to deliver.

Information from the Borger News-Herald,

Posted to MyPlainview: MAY 19, 2005 16:11 CST Another Panhandle district attorney has run afoul of the law.Clay Ballman, district attorney for Hutchison and Hansford counties, faces a misdemeanor charge of driving while . . .
Associated Press

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Probation Overhaul Bill Passes

HB 2193 passed. Its key features:

Credit for time spent in jail as a condition, or time spent in a
court-ordered program or facility, is mandatory.

Maximum probation terms for third-degree felonies is 5 years.

Juries can give probation to state jail felons (except for drug
offenders who get automatic probation), but cannot give probation in
murder cases.

Community service is optional and not required.

Requires the judge to review the defendant's case for the purpose of
considering termination of community supervision after a defendant
has completed one-half of the original community supervision period
and is not delinquent in his fees or failed to complete an ordered

Prohibits a judge from refusing to terminate a period of community
supervision solely on the ground that the defendant is indigent and
unable to pay required restitution, fines, costs, or fees.

Judges must have "good cause" to extend periods of probation.

Those who get deferred for a drug offense and complete a drug court
program get orders of nondisclosure upon request.

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Discovery Bill Not Dead-Yet

Remaining reciprocal discovery bill may have life.

David Finn

SB560, the reciprocal discovery bill, remains dead. However, the Senate amended HB969 with all the language from SB560, plus language that meets the objections from the prosecutors raised late in the session. This, too, is now a reciprocal discovery bill.

This bill is now in conference. When there is disagreement by the House and Senate over a bill, the Speaker of the House appoints 5 representatives and the Lieutenant Governor also appoints 5 senators. The conferees of this reciprocal discovery bill (HB969) are: Rep. Keel, Rep. Bonnen, Rep. Escobar, Rep. Gattis, and Rep. Pena. Today the Lieutenant Governor appointed the following conferees from the Senate: Sen. Carona, Sen. Hinojosa, Sen. Whitmire, Sen. Seliger and Sen. Duncan. They must meet by Friday. If they come to an agreement, then some form of discovery reform will be produced. If they cannot agree, then the measure is dead.

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