Monday, April 14, 2014

Involuntary Intoxication- Taking the wrong pill, Someone slipping GHBin your drink



Involuntary Intoxication Reality: Texans Be Alarmed !

“I no longer knew what was real and what wasn’t. The lines between reality and delusion had become so blurred.” ― A.B. Shepherd, The Beacon

This is what has happened to judges in courts across Texas when it comes to DWI charges. The penal code was created to punish crime and thereby deter others from committing the same crime. Most crimes involve people making bad moral choices, choices that hurt others. Most crimes involve intent to commit the crime. The law recognizes we cannot punish people for actions they did not or could not reasonably have intended. That is why we have defenses that include mistake of fact, mistake of law, duress, entrapment, self defense, and necessity to name a few. Yet the defenses for being intoxicated as a victim, either because of accident or being drugged unknowingly have been soundly rejected by Texas courts.


Texas addresses intoxication, the culpability state, in penal code §8.04 (a) Voluntary intoxication does not constitute a defense to the commission of crime. From, this Texas courts have rightfully determined that DWI requires no intent to commit the crime, but they have expounded on this principal to the non-logical extreme to preclude any defense to DWI. This is legally wrong, it ignores principals of actus reus and automatism. Getting “voluntarily intoxicated” can’t be a defense to DWI. The act of driving while intoxicated assumes you are intoxicated. But what if your intoxication was NOT voluntary, what then ? This is where the judicial delusions begin. In Brown v. State, 2009 WL 3853859 (Tex. App.- Fort Worth, 2009, reh. Denied), the Court said an involuntary intoxication defense would NEVER be available in a DWI case as there is no intent to commit a DWI requisite to a conviction; therefore since no mental culpability is required all DWI scenarios are fair game for conviction. In Brown, the defendant had two drinks before bed, woke up and mistakenly took Ambien instead of his blood pressure pills and was denied the jury determining the issue of “involuntary intoxication.” The highest appellate criminal court in Texas recently agreed with the Brown court outcome on similar facts in Farmer v. State, 411 S.W.3d 901 (Tex. Crim. App. 2013) where Farmer accidentally ingested an Ambien his wife set out in place of his normal pills. Here, the Court states that the argument of ‘voluntary act’ (lack of actus reus) was improper and that it should have been a defense of “involuntary intoxication” argued (which the Texas courts in countless decisions has clearly stated does not exist) and gave no grounds of relief. Yes, legal running in circles to get the end result: a DWI conviction.


Just as troubling are the “slipped a mickie” in the drink cases. In Bearden v. State, 2000 WL 19638 (Tex. App. –Houston [1st Dist.] 2000), despite defendant’s testimony that someone had to have slipped something in his drink, the jury was not allowed to judge the credibility of the defense and its merits because the Court reasoned the legislature had not included a culpable mental state in the definition of DWI. In McKinnon v. State, 709 S.W.2d 805 (Tex. App.-Fort Worth, 1986) with similar facts, the Court blamed the defendant on not being able to get the defense because she did not prove the who, what, and how of having her drink drugged. This begs the dangerous reality that when people do have their drinks drugged, which is an unfortunate situation not all too uncommon, the perpetrators do not generally make neon light confessions to the act before, while or after they do it. What is even more troubling, is that GHB metabolizes so quickly it leaves the body in less than 12 hours making it near impossible to prove that you were drugged as the defendant is rarely bonded out in this time period. Texas courts have also attempted to rule out in the “automatism” defense using the same flawed logic. In Nelson v. State, 149 S.W.3d 206 (Tex. App.-Fort Worth 2004), the court ruled that automatism, “engaging in what would otherwise be criminal conduct if done in a state of unconsciousness or semi-consciousness” falls within the insanity defense where it does not apply to DWI due to no mental state or intent being a part of the proscribed conduct. Thus in a convenient one fell swoop, the court rejects automatism without ever addressing its merits which has nothing to do with the insanity defense.

Although the insanity of MADD pressure on elected politicians has contributed to this type of agenda based decision making, other states have set great examples in the area of “involuntary intoxication.” California in People v. Holloway, 164 Cal. App. 4th (2008), declared “No sufficient reason can be given for punishing those who have become drunk through unavoidable accident, or through an honest mistake.” In this case the defendant was “sleep driving” due to a medication he took while unconscious due to its effects. The Georgia Court of Appeals held in Colon v. State, 256 Ga. App. 505 (2002), a GHB poisoning case, the ultimate merit of an involuntary intoxication defense goes to the jury once the defendant has proven by a preponderance of the evidence the “involuntary intoxication must render the person incapable of distinguishing from right or wrong and must be attributable to consumption of a substance through excusable ignorance or the coercion , fraud, artifice, or contrivance of another.”

Thomas Jefferson said, “Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” It does not take a law degree to know that prosecuting, much less convicting someone of DWI who is a victim of being drugged or accidentally taking the wrong medication violates all moral boundaries. Sure, where there is a question of whether or not the involuntary intoxication defense is legitimate is a question to be decided on a case by case basis that should be left to the jury or trial judge for its merits. For appellate courts to twist logic and legal semantics in order to preclude such defenses from its citizenry is wrong. DWI enforcement all the way up to the highest court in Texas has turned into a witch hunt when victims under the scenarios discussed here have no redress. It is time we get back to basic justice in the world of DWI. Mark Twain said, “Always do what is right. It will gratify half of mankind and astound the other.” Texas judges, bring back the involuntary intoxication defense, to do otherwise is no different than supporting corruption. DWI has always been framed around preventing victims, yet when those victims have become intoxicated through no reasonable fault of their own, Texas courts have turned their back. This is hypocrisy in the name of blind allegiance to zero tolerance not justice.

“Always do what is right. It will gratify half of mankind and astound the other.”






Saturday, February 08, 2014

TSA Abuse- Needed Attention

http://youtu.be/iuG30df_EE8

This video demonstrates the abuse of power that we as an advanced society must study and address. In 1971 Philip Zimbardo picked 24 Stanford University students & had them role play a simulated prisoner- guard experiment over six days. The results simulate what this TSA video so ashamedly shows the propensity for- psychological abuse.

It is inexcusable that all the way up the chain of command in this video the TSA employees were unfamiliar with the regulations that would have prevented unlawfully subjecting this woman to delay, aggravation, humiliation, fear & ultimately a missed flight (thereby financial repercussions).

In law, judges must throw out cases where the detention was a result of an unlawful stop (no reasonable suspicion of a crime or probable cause for the arrest) Here, TSA acts with impunity and no fear of repercussions.

We must pass laws that make TSA employees follow regulations and allow for interlocutory relief. Otherwise there is only different scaled forms of tyranny as demonstrated here where authority is questioned. It being subject only to the personality traits of the errant or out of line TSA employee. Power unchecked is abuse and a society that allows it is even more irresponsible.

Shameful this took place to a young mother who was only concerned about the health of her child. These employees should (just as citizens must answer to the law) be held accountable.

The heinous terroristic acts of 9/11 should not be allowed to metamorphosize into domestic terror by psuedo law enforcement against our own citizens.

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Monday, January 27, 2014

Hero or Harasser ? Hero I say

Man gets arrested for warning drivers about upcoming speed traps. He is also against how the speed traps are being enforced (cops hiding behind signs and jetting out weaving in and out of traffic to catch the speeders is more dangerous than most of the speeding driving they are pursuing). My two cents: this is a free country, he has a right to protest, and he makes a good point. I realize most cities now earn a necessary part of their administration fees through the traffic ticket fines they collect but this does not make it right. Much like the current national agenda to go create DWIs rather than just pull over the ones that have probable cause for DWI or are involved in accidents, just getting in your car and driving to work has turned into an opportunity for government to exploit us, much like driving a vehicle after drinking a beverage(s).  Thomas Jefferson once said, "My reading on history convinces me that most bad government results from too much government."   Traffic tickets on busy roads, especially during rush hour congestion, causes delays, loss of work productivity and unnecessary fear. The Germans and their autobahns seem  to have figured that out long ago.  It's one thing to set up speed traps when necessity dictates (like country roads where there needs to be lights and public safety is an issue) a whole different thing for the purpose of generating income.  Government should go back to being (as Lincoln said) "of the people , FOR the people, and by the people" otherwise what is the difference between democracy and communism or dictatorships ? We need common sense.... More power to you Ron Martin.  Too many people line up for the communist bread lines and never flinch-- you represent what this country is suppose to be about.

http://www.myfoxdfw.com/story/24465916/frisco-man-arrested-for-warning-drivers-about-speed-traps-works-to-clear-name

Saturday, January 11, 2014

Marked Signs of Tyranny over Law (DWI)

For Christmas I asked Tony to get me the book If This is Man by Primo Levi published in 1947. Somehow I had come across a review of this book and what fascinated me was that this was the autobiographical account of  the Nazi Auschwitz concentration camp written by a survivor who was a chemist in his early 20s.  My experience with true chemists (possessing chemistry degrees) is that they are extremely intelligent and detail oriented. I expected to find a book rich in detail and sage with life observation. What I did not expect to find were the parallels with Nazism and the loss of rights evolution that has occurred in this country with those accused of DWI. Much like Nazism, MADD has turned its focus into a widely successful propaganda machine where like the overall German population who closed their eyes to the atrocities against the Jews, basic constitutional rights have been stripped away and allowed by the majority of our American population and our criminal justice system. Some striking passages in the book:

"... a country is considered more civilized the more the wisdom and efficiency of its laws hinder a weak man from becoming too weak or a powerful one too powerful."

Right now the politics of MADD has been so successful that basic constitutional guarantees such as the right to be free from illegal search and seizure and double jeopardy nationwide have been stripped away. "Surcharges" from state highway departments as high as $6,000.00 as a form of double jeopardy punishment have been approved in many states punishing a citizen of DWI twice after they have been assessed fines and court costs in their criminal case despite the Constitutional guarantee against this. (I sued Texas DPS over this and lost.) Recently the United States Supreme Court determined in Missouri v. McNeely that police can not forcibly obtain blood from a DWI suspect without a warrant, yet despite this April 2012 decision courts across the nation including Texas are issuing opinions that continue to allow this under the "implied consent" statute even though the Supreme Court addressed this and under our laws- state laws can't trump basic constitutional rights. The disregard for the Constitution and the United States Supreme Court is brazen.

How does this happen ? An insight from the book and the true nature of man as demonstrated by Nazi history: (I think of this as the prosecutors and judges who consciously disregard their jobs to properly interpret and enforce the laws starting with the Constitution.)

   "...the more power that he is given, the more he will be consequently hateful and hated. When he is given the command of a group of unfortunates, with the right of life or death over them, he will be cruel and tyrannical, because he will understand that if he is not sufficiently so, someone else, judged more suitable, will take over his post. Moreover, his capacity for hatred, unfulfilled in the direction of the oppressors, will double back, beyond all reason, on the oppressed; and he will only be satisfied when he has unloaded on to his underlings the injury received from above."

What is happening when the basic guarantees of our Constitution become meaningless ? It points much like in WWII to an authoritarian state. Uncanny rehauntings of a loss of lawful dignity from the book:

"In an authoritarian State it is considered permissable to alter the truth; to rewrite history retrospectively; to distort the news, suppress the true, add the false. Propaganda is substituted for information. In fact, in such a country you are not a citizen possessor of rights but a subject, and as such you owe to the State fanatical loyalty and supine obedience."

Bottom line, our law enforcement, district attorneys and judges have lost reason for the propaganda machine of MADD politics. What happens then ? It is already happening here in the loss of the basic rights of the innocent until proven guilty citizen accused. A poignant passage of the book:

"In every part of the world, wherever you begin by denying the fundamental liberties of mankind, and equality  among people, you move towards the concentration camp system, and it is a road on which it is difficult to halt."

Sheriff Joe in Phoenix Arizona is already humiliating DWI inmates by putting them into pink jumpersuits and states across the country are passing DWI laws where citizens with a past DWI conviction have to use license plates that brand them as such.

It is important that one separates their feelings when considering this loss of constitutional liberties.  Our Constitution was formulated to apply to all citizens accused of all crimes. To stop this tyranny we must first recognize it and go back to reason.  A concluding thought from the book on how it all begins:

"This collective madness, this 'running off the rails', is usually explained by postulating the combination of many diverse factors, insufficient if considered singly..."

\It's time to we go back to reason. We are in DWI police state tyranny. This is unAmerican at its core.

Wednesday, December 18, 2013

Save American Manufacturing- Buy New Balance

Simple Acts by All of Us Can Invigorate Our Economy

New Balance shoes is the LAST and ONLY US shoe manufacturer. They provide jobs to Americans. Their plants support local economies. All the other shoe manufacturers have picked up and gone to China or Vietnam to increase profits for the executives. An inspiring story on New Balance's commitment to the US (on Dan Rather reports, here is an older story: http://articles.washingtonpost.com/2011-07-28/business/35267547_1_new-balance-free-trade-agreement-footwear )

The trade deficit is killing our country and the excuse is "it will create more jobs." Per the Alliance for American Manufacturing "Our surging
trade deficit with China is one of the key obstacles on the path to a true jobs
recovery for American workers...Yet no one in Washington is likely to even notice the fact that the July trade deficit
with China was an all-time record." The trade deficit with China (over 30 billion) is costing American jobs and creating a new Chinese "middle class" in which the Chinese government protects its own industries. It's like true love- it has to be a two way street or it does not exist. The US fails to acknowledge that China does not play by the same rules. They trade to create their own markets insisting that US companies partner with Chinese companies in order to trade, all with an eye towards eventually cutting off the US connection once they learn how to make the product themselves. Best explained by an industry quote:

"The United States where free-market advocates deride the role of government, the Chinese state has played a central role in creating, supporting and expanding businesses here. In addition to privatization, cheap government loans and massive government-funded infrastructure projects drove China’s boom. The Chinese government also required foreign companies to create joint ventures with Chinese firms that, fairly or unfairly, allowed local companies to learn valuable manufacturing and business practices."

http://blogs.reuters.com/david-rohde/2011/11/03/will-made-in-america-sell-in-china/

Don't get me wrong, there is nothing wrong with an emerging Chinese middle class but that is a benefit for the Chinese. So very little of their "middle class" prosperity crosses back over in the trade divide. We need to focus on reinvigorating our American middle class and creating jobs. The key is studying history as opposed to being naive optimists with a culture that does not share our same values of fair play and equal opportunity. The facts are since the Reagan era push for free trade we have created a growing and widening trade deficit and lost countless industries and jobs as they moved overseas. We have lost the skillset and knowledge those industries carried, most importantly we have lost a demographic of job production of which our country took pride. Profits to Wall Street executives do not stimulate the economy or provide opportunity in the same large scale way like Main Street healthy local economies & communities do. The key to this whole debate is that with every new trade agreement push (currently TPP), analysts cite projected job growth but never report back on the grim realities of the trade agreements preceding (Congress should be required to get a history lesson on the previous trade agreements passed before voting on new ones).

It is time to stop this downward spiral and focus on our own economy.
Take a stand. Buy New Balance and let's invest in those who invest in our own country. Mimi Coffey


Saturday, November 16, 2013

Criminal Justice System- Crisis in Confidence

 
Ryan Ferguson spent 8 years in prison for a murder  he was sentenced to 40 years that he did not commit. He was an Eagle Scout,  excellent son and friend  to many whom found himself in a broken criminal justice system: police coercion, prosecutorial withholding of evidence, judges refusing to follow the law based on evidence (appellate courts not fixing wrongs), witnesses being pressured to testify falsely (the DA responsible for this is now a judge), it reads like a John Grisham book except that it's sadly not fiction.
 
 
We as a good American people cringe when we see stories like this on tv. There are many of these across the country, scarier still there are many whom languish in jail without being able to prove they are innocent but are (wrong eyewitness identification, etc.). Simply put, we have lost confidence in the criminal justice system. It feels like the America of the 1970s: recession, cold war, inflation, the languish of being outbid, outsold and outproduced by foreign competitors while standing in long lines for gas, a dampened loss of spirit.  Then came the miracle on ice when a group of hardworking college boys beat the 4 time world champion Russians (literally professional soldiers: 4-5 years older with far more training)  to go on to win the Olympic gold and give our country hope again. Ryan Ferguson is a symbol of that miracle on ice. His exoneration makes us smile and makes us feel good inside. We feel united as a country in wanting to prevent these evils.  Let us not miss our opportunity. Here is what needs to be changed:
 
 
1. We need to hold judges and prosecutors accountable.  Currently the Texas Office of Judicial Conduct is worthless. They rarely discipline wrong and when they do, they mostly do it in "private" under a series of numbers (not the judge's name) with a "private" written reprimand that has no teeth and holds no one accountable. It allows bad judges to stay in office or worse seek higher office. A perfect example is Tarrant County Judge Sharen Wilson who was privately remanded for heinous and shameful jury tampering and yet no public record exists with the Office of Judicial Conduct (records have been filed in court however because of the successful recusal hearing involved by necessity) as she seeks the top District Attorney's office so she hits the campaign trial falsely denying ANY form of discipline because of the way the Texas Office of Judicial Conduct operates and secretly holds information.  Ryan Ferguson's unethical DA Ken Crane whom withheld evidence and sponsored dubious testimony deserves prison for his conduct in falsely convicting an innocent man yet sits today as a judge in Missouri with power over others' lives.  DESTROY THE TEXAS OFFICE OF JUDICIAL CONDUCT AND CREATE A NEW ONE THAT DOES NOT PROTECT BAD JUDGES BUT MAKES THEIR BAD AND ILLEGAL CONDUCT PUBLIC AND ACCOUNTABLE TO WE THE CITIZENS. We are the taxpayers, they work for us not those elected judges as they seem to think.
 
2. Educate judges and district attorneys. There are two islands that exist in criminal justice. The biggest island with all the resources is an unhealthy marriage of Judges and Prosecutors.  Their budgets are state funded and police directed. For example, DWI field tests (scientifically peer reviewed as unacceptable attributing to false convictions) are produced and promulgated by NHTSA in much the same way the Nazis promoted their "ethnic cleansing"(billboards, media, etc. except here in combination with MADD scare tactics despite the fact most people who drink and drive are responsible) and with the same widespread success even though it is wrong.   Yet some defense lawyers refuse to work in combination with DAs and Judges in joint education. As cocourse director of the most scientific DWI seminar in the country (MSE: Mastering Scientific Evidence) and despite judge requests, I cannot get the leadership to agree to allowing judges and prosecutors to attend (cost issues could be addressed by simply charging the premiums necessary). The same has happened with Borkenstein, our country's top scientific training for government scientists.  They no longer allow the defense to attend (I attended twice and found it enormously helpful). This is just WRONG.  Until ALL states have found a way to give their judges and prosecutors the top, most scientific training possible defense lawyers have an obligation to share this training and knowledge.  It is not acceptable to turn a blind eye to this problem. Innocent people get convicted everyday simply because judges and prosecutors do not have the scientific tools to assist them in making the right decisions. It is time to come together. To use a great 80s reference- "white" music and "black" music must find a way to come together much like Aerosmith and Run DMC in the ultra hit "Walk this Way." Once the two sets of artists were able to come together, they created something far more enjoyable leading to the mainstream hip hop top 20 of today. It is time to set aside the attitude of "burn disco" parties and focus on the greater good.  I am sick and tired of hearing defense lawyers belittle and begrudge judges just because they feel inferior. The facts are, judges deserve not just  our respect but also our cooperation to come together for the greater good alongside the prosecutors.  Prosecutors  need good, scientific information even more than the defense lawyers. They end up prosecuting people who have no representation.
 
3. Last but not least, we must change the formula for choosing lawyers. Currently law schools choose students by highest GPA and highest LSAT scores. This naturally leaves out the science and math majors who have lower GPAs due to harder subject material. The law desperately needs math and science minds in criminal justice.  DNA, infrared spectroscopy (breath testing) and gas chromatography (blood testing), research tools (math and statistics to evaluate government research and their deficiencies) are bare bones necessary knowledge to do the right thing.  How can one understand there is a problem with the blood test if you can't interpret gas chromatograms, for example ?  Law schools have an ethical obligation to produce lawyers who can. Freedom is a high price to pay because the lawyer was ignorant or incapable of math and science. The ability to interpret Shakespeare or explain different models of business management won't help you understand how acetone can be read as ethanol via infrared spectroscopy. We must for those devoid of such backgrounds continue to train them, ALL of them INCLUDING judges and prosecutors. We must place a priority in  attracting   math and science  minds to criminal justice. 
 
Going back to the "Crisis in Confidence". Much like the 80s, and how Ronald Reagan made it ok to say "Tear Down these Walls" we too now on the backs of people like Ryan Ferguson demand "Tear Down these Walls" that cause injustice. Thank goodness it became ok in the 80s to shop (live), make money (the Dallas series with JR), and express yourself (Madonna).  It is ok NOW my fellow Americans, it is MORE than ok, IT IS TIME to feel good again about our criminal justice system by demanding one worthy of our respect.   Foremost, we REQUIRE DAs and Judges be concerned about seeking "justice" and not just convictions. "Tough on crime" is for the birds- it went the way of the Hanging Judge of Fort Smith, Arkansas and sheriff shootouts in the wild west. We are a civilized, enlightened people now.  We, the American people, state in a JR Ewing way "Do the right thing or I'm coming after you, going after your law license, and going to see to it you  won't ever be able to convict another innocent person again." It's already started, happy to report that Texas Williamson County  DA turned Judge Ken Anderson who withheld evidence as a prosecutor that sent an innocent man Michael Morton to prison for 25 years has now been sentenced to jail and stripped of his law license.   America- it's time to feel good again because DOING RIGHT is Right Again. We won't tolerate Ken Cranes (Ryan Ferguson) and Ken Andersons (Michael Morton) ANYMORE. 
 
What a great time to restore confidence in criminal justice. Be proud America and I'm proud to do my part and promise to always do so.  It's a new America in criminal justice now, long overdue...
 



Tuesday, November 12, 2013

The Tarrant County DA's Race

If you are telling yourself the DA's race doesn't affect me, chances are that it will. The odds are very high that despite a good job and being responsible you will have someone close to you (a family member, a coworker you care about, your friends or neighbors) get arrested for DWI or something else as minor as driving without a license and then who the top elected DA is (who sets policy and the tone for justice and fairness) will very much matter. 

The elected District Attorney must be a leader, of moral integrity, knowledgeable and a respecter of the laws, truthful, and of good judgment. It is the most important elected position in the county because it is the top law enforcement position. A good DA makes decisions that protects the community, rehabilitates those who make mistakes, and exercises appropriate mercy and compassion.  Attached is the record of Tarrant County DA candidate and former judge of Criminal District Court 1 Sharen Wilson. What these records show (see below the exhibits) are the following of huge and grave concern to us, citizens of Tarrant County: 

  •       She forced an involuntary plea of a 17 year old (motion for new trial she later admittedly granted). 


  •       Once the 17 year old was doing well in school for NO REASON she threw him back in jail so he could not finish (her nonlegal excuse was his lawyer talked to the media). 


  •       During the legal process to fix her wrong, the involuntary forced plea, she tortured the defense lawyer by “arresting her to the courtroom” (even though she left the courthouse &  did not tell the defense lawyer) for no valid reason and on several occasions berated her, demeaned her and humiliated her for NO legal reason (repeated inappropriate judicial conduct often observed). 


  •       During the trial of the 17 year old she inappropriately met with jurors numerous times behind closed doors (in the jury room) attempting to charm them by bringing food for them and even her dog (her cover her ass  jury instruction does not amend this harm).


  •       During the trial behind closed doors she lied and spoke disparagingly about the defense lawyer. She slandered the defense lawyer by claiming she “broke the law” by speaking to the media. This was a lie because there was no gag order prohibiting the defense lawyer from talking to the media not to mention the defense lawyer did not mention the facts of the case to the media just addressed public education concerns of the defendant (controversy over him being in school).  


  •              During the trial she made overt facial expressions and gestures of dislike towards the defenses questioning and presentation of evidence making it clear to the jury what her opinion was in attempting to persuade them.


  •        When the jury returned a verdict of probation, she  proceeded to berate and belittle the jury, arguing with them how they were wrong (see affidavits) to the point of making one juror cry. 3 jurors contacted the defense attorney all saying the same thing- they firmly believed Sharen tried to illegally influence the jury (2 affidavits attached filed in court) and were shocked at her unprofessional and unbecoming judicial conduct after the verdict.


  •        When she asked the jurors for their legal recommendations for the 17 year old kid’s probation conditions and they expressed they wanted him to finish school she once again berated the jury and argued with them because this did not comply with her own beliefs.


  •       After the verdict, she knowingly committed two class A misdemeanors (up to one year in jail, violations of the elections code, misuse of public funds) in mailing her campaign literature with the court thank you letters.


  •         Her judicial conduct was so violative and prejudicial of the sanctity of  law  it recused the defense lawyer  from having to practice in her court for some time because it was determined the judge could not be fair. 


Now this judge, Sharen Wilson, wants to be the top law enforcer of Tarrant County.  I wish I was kidding but I am not.    Most recently at a political event Nov. 12 held by the Mansfield Republican group meeting at Spring Creek BBQ, when asked  about whether she had any grievance or disciplinary actions she responded NO (I wrote the question, I was there). The question was very clear "any form of discipline" (which includes reprimands such as her's). Those who lied in front of her on the bench were generally rewarded with prison certainly not public office. 



It is a well known fact that Tarrant County has one of the best DA office reputations in the state (longevity, stability, innovation, despite my differences with their DWI positions- wink). Most DAs at the office DO NOT want to work under Sharen Wilson. Most lawyers do not support her. This is a fact.  Her banner supporters are NOT lawyers which is customary for DA and judicial races.

 Everything I have stated is a matter of record and NOT personal opinion. My personal experiences with Sharen Wilson are akin to most everyone who has ever practiced in her court (despite a few rogue supporters): overwhelmingly unprofessional and demeaning to the profession of law and the judiciary.  It is justice and my professional experiences in pursuit of it that counts.  When I put 18 years of experience practicing in front of her (clients being forced to leave out of town rehabs to attend a perfunctory court date, her throwing my clients in jail for ‘dubious’ and arguably unjustified reasons, etc.) I CAN NOT say in good faith, in good conscience, or with good ethics, and with concern and respect for the community that Sharen Wilson is fit for office based on her own record.

It takes a lot of guts for a lawyer to fight a bully (as evidenced by the grievance record). It’s one thing to do it in the courtroom; it’s a whole other level when you have to fight it in the judge. As the records indicate, Kathy Lowthorp did this with dignity, class, maintained composure, and was razor sharp with the facts and the law. She is no nonsense; get right down to business kind of gal.  For this and many other reasons (she is a former cop, military, raised 4 grown kids and is an excellent trial lawyer who cares passionately about her clients and others) I am writing this post as I feel it is my duty to educate because I care (most members of our community have no firsthand knowledge of the appropriateness or record of law related candidates). The primary election in MARCH will be the most important DA race in 40+ years (Tim Curry’s respected regime then his handpicked successor). Please feel free to share this and enlighten so that we can continue to take pride in our leaders in Tarrant County and demand honesty, integrity and respect .


Wednesday, November 06, 2013

An Enlightened People limits government- the Bill of Rights

Just finished reading The Young Jefferson by Claude G. Bowers. What struck me was that an enlightened people limits government not trusts it.  Jefferson, when it comes to political ideology defines "enlightened." As a lawyer, what rings the loud gong bell for me is his wisdom in ensuring the "Bill of Rights" which is for practical reasons, the only safeguard we have today against encroachment and police tyranny (namely the 4th amendment). There are several political lessons to be learned in this story. After Independence, and it was his hand that so beautifully coined the magic phrases that defined a movement (his and Tom Paine's Common Sense) Thomas Jefferson found himself in France as our diplomat to our chief ally. His main and constant thorns were trying to calm down the debtors (international as well as French) who were owed money that funded our Revolution because the weak Articles of Confederation rendered our government powerless in levying taxes, responding timely with one voice to treaty and diplomatic issues and handling our own debt (which left our colonies divided on issues against eachother). A new but limp and powerless  country was no answer. James Madison, Jefferson's protégé while Jefferson was in France, ran with the baton of convincing all the colonies to call for a constitutional convention to enact governing statutes that made practical unifying with one effective voice all the colonies. Our great statesmen were so happy to have achieved the goal of replacing the Articles of Confederation with a Constitution that empowered our government that after achieving this goal they quit, indeed they had achieved the removal of embarassments for our overseas diplomats and the world was happy to see a government in place that made the US accountable, responsible and powerful enough to follow through on obligations to others as well as itself. If the story would have stopped here, imagine a behemoth government like the Soviet Union or China where the all powerful government would squash dissent, freedom of speech, dissenters or minority views because this would have been us. When Madison sent Jefferson a copy of the Constitution in France, Jefferson immediately voiced his rejection. An all powerful government with no direct restraints on its encroachments on its people was dangerous. Imagine if all we had was a framework that created a government of checks and balances of an executive, legislative and judicial branch and a nothing more. When we think of the Constitution we think of the Bill of Rights: our freedom of speech, of religion, to gather, our protection against unreasonable search and seizure, etc. We think of the ability to pursue life, liberty and happiness without  government interference. But a government of "checks and balances" protects the people you might say- wrong. I spend my career reminding judges (the judicial branch) there is a 4th amendment, that police can't just stop you for no reason and even then so often judges ignore our rights (no secret that in today's MADD DWI hysteria, bad stops are rubberstamped). Without the Bill of Rights, we the people would be at the whim of the controllers. "Absolute power corrupts absolutely."

Here are some of the passages that inspired me. In short , we are to be eternally grateful that Jefferson only acquiesced to the Constitution in approval as long as a Bill of Rights were forthcoming which, despite a seriously hotly contested battle, is exactly what occurred. We the people are in large part free to be happy because of the brilliance of Mr. Thomas Jefferson. God bless  his soul.

To a friend who wrote that the Constitution did not need a Bill of Rights because the Constitution provided for checks and balances between state (subordinate) and the federal government- "a security which exists in no other instance": he replied "The jealousy of the subordinate governments is a precious reliance. But observe that those governments are only agents. They must have principles furnished them whereon to found their opposition. The declaration of rights will be the text by which they will try all the acts of the federal government. In this way it is necessary for the federal government also; as by the same texts they may try the opposition of the subordinate governments."

To an accusation that a Bill of Rights would be inefficient: "..though it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference in the inconveniences which attend a Declaration of Rights, and those that attend the want of it.  The inconveniences of the Declaration are that it may cramp the government in its useful exertions. But the evils of this are short-lived, trivial, and reparable. The inconveniences of a want of Declaration are permanent, afflicting, and irreparable."

Jefferson wrote to Frances Hopkinson (signer of the Declaration of Independence and federal judge in Pa.): "What I disapproved of from the first moment was the want of a Bill of Rights to guard liberty against the legislature as well as the executive branch of the government; that is to say, to secure the freedom of religion, freedom of the press, freedom from monopolies, freedom from unlawful imprisonment, freedom from a permanent military, and a trial by jury in all cases determinable b the laws of the land."

Jefferson, know that those of us blessed with the sacred license to practice law to ensure others' right to happiness and protection, will do our best to keep the Bill of Rights alive. I know you would be happy. For only a free people can be happy.

Saturday, October 12, 2013

Heartbreaking Injustice- We Need Impartial Judges

My heart is so big, I can't stop or help myself. When I see injustice I get really mad. I CAN'T just let it go. Every day it is my job to fight for justice but today I must scream out or burst. Thursday night Dan Abrams on Nightline exposed the case of Ryan Ferguson. Simply put: Ryan was a 19 year old college student:great son, great kid, former Eagle Scout, the kind of kid you want your kids to be friends with, the kind who grows up and gives back to the community, when he was convicted for a murder he did not commit and sentenced to 40 years. How ? Step one: the police. The Columbia, Missouri police had an unsolved murder (the only one in their county which they were proud of) with hair, blood, DNA- just no suspects. A few years go by and then Chuck Erickson,  a kid Ryan's age who he was nice enough to give a ride home to from a club on the night of the murder, told the police Ryan and he committed the murder. The problem ? Chuck is hallucinogenic, has major drug and alcohol problems and is known for telling whopper stories and lies by all who know him. The police browbeat him into a confession implicating Ryan (see the videos) and threatened the death penalty on him unless he agreed with all the facts of the murder as told to him by the police (see the videos, he has no idea what he is talking about while the police yell at him the details and force him to agree). Step two: the district attorney's office. The other state witness Jerry Trump, who could not identify the suspects, was told by the district attorney Kevin Crane (now a judge who ran on this bragged conviction) "it would be in his best interest to cooperate". Trump was on parole as a convicted child molester and decided to say what Kevin told him to say on the witness stand even though it was a lie because he was scared to get his parole revoked. Step 3: the judge. Chuck and Jerry both feel so guilty later they come clean and testify in a new hearing they both lied because of the pressure from the police and DA's office. (for all the details see: http://www.crimemagazine.com/one-murder-two-victims-wrongful-conviction-ryan-ferguson ) Cole County Circuit Court Judge Daniel Green heard this appeal based on the recantations and guess what ? Judge Green refused to reverse the conviction. Once again, the blood and hair of the killer on the deceased's body exists and it is neither Ryan's or hallucinogenic lie telling Chuck and yet Ryan still sits in prison.  A true tragedy.  Every police officer and investigator of the Columbia, Missouri police department involved in coercing these false confessions, the district attorneys who had a mountain of evidence proving Ryan had nothing to do with this case, especially Kevin Crane,  deserve to have their law licenses stripped away and prosecuted for malicious prosecution & tampering with the evidence.  Cole County Circuit Court Judge Daniel Green needs a new job. He does not have the ethics or intelligence to follow the law. The evidence and law at Ryan's appeal demands a reversal. Hopefully the next level appellate court in Missouri gets it right.

This is not an isolated incident. The public must blame itself. The reason why the cops, DAs, and judges do this is because they want to look "tough on crime" to keep their jobs. This is the public's fault. We need to boot all these types OUT.

Specifically in Texas. Texas Judge Ken Anderson as a prosecutor withheld exculpatory evidence that led to Michael Morton serving 25 years in prison for the murder of his wife that he did not commit (DNA evidence later proved this).Yet what was important for Ken at the time he was prosecuting Morton was that he get his glorified "conviction" despite the evidence. This notoriety of success for being "tough on crime" in  a high profile case helped him get elected to judge. We must stop this. It is time we start electing defense lawyers to the bench and as DAs because defense lawyers know and appreciate how wrong it is to convict innocent people. Defense lawyers understand that it is not "tough on crime" that matters but "do the right thing" on crime.

This week I was reminded of how I, in Tarrant County, Texas (I also practice in Dallas & Collin) have to deal with this. I just spent 4 days this week on a felony DWI trial. This case is being appealed so all these facts are a matter of public record (a court reporter transcribed the whole trial). My girl is a 30 year old stockbroker who lost her stockbroker license and will lose her condo because she can't pay for it. Here is the injustice of the trial (what we are appealing):

1. The jury never got to hear the testimony about how the same Perkins Elmer gas chromatograph (software unknown because the lab refused to give this to us per subpoena order) being used in Arizona is giving wrong results (data drops, mislabeled results, etc.).  The judge would not allow this detailed and important testimony. He said it was not relevant. I wish I was kidding but I am not.

2. This DWI was about alcohol. The judge ordered the "pills" in her purse (of which she was not charged and the cops never suspected she took them on this DWI, no DRE DWI was done) could not be mentioned and the DAs were instructed to tell their witnesses not to mention it. Yet, the cop testified to the "pills" in her purse found at the scene.  I moved for a mistrial. The law dictates a mistrial. Pills may not be relevant in a driving while license suspended  or improper photography case but it sure as hell is something the jury will improperly consider in a DWI case. The judge denied my mistrial (not once but twice, I gave him 2 chances) . The judge said that we would call it "medication" for the remainder of the trial and jurors would not consider this anyway after he told them to disregard. Any takers on that one ? Also, the judge blamed ME for the cop doing this. Said he didn't like my question (my question had NOTHING to do with anything but the DWI). I'm getting reamed for the state violating their own motion. Unbelievable.

3. The cop testified his legal reason for pulling her over was she turned left from the center lane. The video shows this is not true, she turned from the left lane. Our expert cop was prepared to testify to this. The judge did not allow me to ask my expert cop this which would give the jury an instruction to throw the case out per the law if they found there was no reason for the cop to pull her over.  The judge looked at the video and came up with his own traffic violation to pull her over and denied any testimony from my expert cop on this. The judge also denied the charge despite the video showing the cop's reason was not true.

4. The big one. In April of this year the United States Supreme Court in Missouri v. McNeely ruled the police have to get a warrant to draw blood in a DWI case unless there are exigent cirumstances (for eg. the defendant is unconscious going to the hospital dying). In my case, the judge ruled there were NO exigent circumstances but he refused to follow the Supreme Court ruling and allowed the jury to hear her questionable blood result (see above plus a myriad of other reasons which proved the blood test was wrong in this case). NOT ONE TARRANT COUNTY FELONY JUDGE TO MY KNOWLEDGE HAS FOLLOWED THE US SUPREME COURT on this issue. I am being told that whether TARRANT (aka DA's office and felony judges) will follow the US Supreme Court depends on how our TEXAS appellate courts rule. Yup, craziness. Totally outlandish. Don't think the US Supreme Court will be happy when they have to deal with Fort Worth. Reminds me of when JFK had to send in the National Guard in Alabama to abide by law....

Bottom line, my girl spent thousands for a trial, two expert witnesses and this is the trial she got- not a fair one in my professional opinion. Everything I asked for got denied (see above) while the DA got whatever they asked for. For example, both my experts were limited in 705 expert hearings as to what they could talk about, yet when the DA asked my expert questions that went outside of what the court ruled the judge didn't stop him (said it was ok that my expert get asked questions on field sobriety even though the ruling was he could only testify on blood, yet my own expert cop could not testify on cop procedures for the stop).

It is time for judges to stop being prosecutors on the bench.  How does the public stop this ? Stop rewarding bad behavior ! It is time we consciously reject at the polls the Republican "tough on crime" candidates (how prosecutors advertise when running for judge). It is time Democrat or Republican, we start  electing  lawyers who are tough on injustice (defense lawyers are a natural at this). You can't get back time from people who have been wronged by the justice system. The wrongfully convicted forever lose those days and hours locked up- money does not replace lost time. Let's fill our judicial benches with decisionmakers who fight this type of wrong. 

Hopefully the Fort Worth Court of Appeals will get it right and give my girl another shot at a fair trial so we can seek justice with all the facts on the table not just the ones that favor the prosecution.

As for Ryan Ferguson. Please write your congressman, senator, state house rep and senator, the President  and governor of Missouri (who can issue a pardon). The more people that speak out to the right people the more chance justice will be done. The Missouri state and federal congressional delegation as well as voters need to be looking to replace Cole County Circuit Court Judge Daniel Green (who refused to reverse the false conviction) and Boone County Circuit Court Judge Kevin Crane (who pressured eyewitness Jerry Trump to lie knowing he couldn't identify Ryan Ferguson).

For more information:

Ryan Ferguson may be contacted:
Ryan Ferguson #1137593
Jefferson City Correctional Center
8200 No More Victims Road (3 House)
Jefferson City, MO. 65101

His parents Bill and Leslie Ferguson can be contacted at freeryanferguson@aol.com , or send a comment through www.freeryanferguson.com or www.justiceforryanferguson.com .

My heat breaks for Ryan Ferguson and his family. This is not right. My heart breaks for my client this week who will lose everything without even getting a fair trial. My heart aches at injustice anywhere. I will keep fighting to make things right in the Texas counties I practice in and for my clients .  You can believe that the Missouri governor will be hearing from me. Ryan, if you get this- anything my law office can do, just let me know. Your innocence lawyer Kathleen Zellner of Chicago is a true blue hero, the kind of person that ranks up there with the likes of Abraham Lincoln and Nelson Mandela.  Hang in there kiddo. Good people will do the right thing. Sorry the justice system is filled with the wrong. People like me are out here trying to change things for the better. I ask you to do the right things and take a stand- whether it is getting involved for Ryan Ferguson or taking your next election seriously by doing your homework before you vote for judges and DAs. Only you can make the ultimate difference when we act together for the good of all.


Saturday, September 21, 2013

What Really Happens at Court and Why

I could not believe the DAs wanted to try my guy- he gets pulled over for 71/65 on a toll road, according to the police report he was polite and courteous throughout the investigation.  He looks great on the walk test (taking too many steps because the rookie cop gives him the incorrect instructions), normal on the one leg test and solid balance on the eye test as the cop does it wrong (does not matter anyway because the HGN may indicate alcohol but it does not correlate it to an amount and there are 37 other judicially recognized causes of it).  The case went to trial, why?  I have it on good authority one of the DAs needed a "stat", for you see, stats add up to promotions within the office which means raises.  I wish I was kidding.  Someone's life is at stake who has spent thousands in his defense, a cop who makes probable cause arrests not at all uncomfortable with the case being worked out, and we spend 2 days in trial because the DAs need a stat.  Heinous.  Well, these DAs were banking on getting a jury that has bought into the mass hysteria "Drink. Drive. Go to Jail."  The foreman after 2 hours sent out a note: "evenly divided". The judge sends back an Allen charge (legal charge that urges a unanimous decisions unless it violates one's conscience) then later brings them back out to which the foreman said it was not possible for the decision to ever be unanimous.  After the judge declared a mistrial, the DAs and I went back to discuss with the jury.  The split had changed 4 Not Guilty, 2 Guilty.  The foreman proceeded to explain if anyone should be wanting a Guilty verdict it would be him as one of his close cop friends was killed by a DWI (he wore the fundraising tee shirt the 2nd day of trial) and he felt strongly that my client was Not Guilty and proceeded to give the myriad of explanations.  He pointed out that the alcohol counselor (I kept her on because her brother had a DWI and had to use my 3 strikes on far worse biased jurors) had argued she was the expert on HGN (eye test) and this was one of the big issues (even though the cop testified on cross you can't correlate the movement of the eyes with an alcohol amount, don't ask me what possessed her to think she was an expert?).  One of the jurors asked what made the lawyers choose them. We explained that it was not a matter of choice but a process of elimination. I went on further to explain that I never let drug/alcohol counselors on my jury but ran out of strikes to which she smiled and said "I was wondering....".  Sad in that right there she herself could not see her own bias.  People like that (like cops, victims of DWI, MADD members) violate the law when they sit on DWI juries saying they can be fair when they know they can not.  Travesty.  So what now - a retrial.  What is wrong with this picture ? Some simple solutions:

1. DAs (and defense lawyers) should have to spend at least a week in jail as on the job training so they can really understand and appreciate freedom.  They sit there day in and day out making jail decisions, most of them (in misdemeanor DWIs) are too young to even understand or appreciate middle age ailment that may falsely make one appear intoxicated when they are not.  Real estate agents look at the property before they sell; we test drive cars before we buy... how is it that a fresh out of law school kid without the requisite common sense and life experience can sit there and play with people's lives for their own statistics in hopes of a promotion?  We need laws and regulations that require DAs go through certain education, supervision and training before making life decisions on people facing jail and convictions that will hold them back the rest of their lives.  Simply put, a fresh faced kid with no life experience should not hold that much power until they are ready to exercise it wisely.

2. We should pass laws that require DAs to document in great detail why (the reason and motivations)  they are taking their courses of actions and this should be open to public review (like officer personnel records for those who make open records requests). This should be subject to review and held to accountability.  Then we would not have DAs (like I have to deal with ALL the time) that simply respond "it's office policy."  "Office policy on DWIs" should not be a reason to circumvent justice.  Then the public can with better education (as newspaper reporters discover through the records) elect appropriate DAs.  Information is power.  An informed electorate is a powerful one.  We are still living in a day where the lawyer that has the most electable name or who can afford the most fliers wins.  Disgusting.  It's only the people who get hurt.  This leads to unchecked tyranny.  This would be one check put in place to prevent what happened when a Williamson County DA now judge concealed evidence that proved a defendant who spent  decades in prison was innocent: http://blog.bennettandbennett.com/2013/04/limitations-and-the-ken-anderson-prosecution.html .  With the passage of laws that require accountability and disclosure on the part of DA prosecutorial actions (they are acting and paid on behalf of the 'state'), there will be enough information for the public to make the right decisions as they evaluate how justice is administered in their communities and oversight to help prevent judicial travesties.

3.  There should be a yearly renewal of the "oath" for every judge, DA and defense lawyer that requires not just that they recite the vow to seek justice but an application form that requires responses such as:
a. How many defendants (clients) have you represented this year?
b. In interactions seeking justice of each client this year - do any involve grave injustice as a result ? List why and with whom (DA, defense lawyer, judge)

Criminal defense, prosecution and sentencing deals with people's lives, not commodities. Everyone in the system should be held to the highest standards. There is more regulation in the restaurants we eat in than in the courtroom.  Every person accused of a crime is entitled to respect and understanding.  It is up to the public to require this.

Bottom line. We need documentation and accountability. The DA, defense lawyer or judge who gets caught not making ethical decisions when accountability is required and open to review will be the one that societal evolution requires they find another path. Justice is too precious.

Monday, September 02, 2013

What it Truly Takes to Be a Good Leader, Good Lawyer---

What it Truly Takes to Be a Good Leader, Good Lawyer---- My Advice to the Aspiring Young

Without going into details  of names and jurisdictions and suffice it to say that as a longtime member and now a Regent of the NCDD, I am privy to the politics of great leaders across the country… It came to my attention recently that two lawyers I dearly admire (one a lawyer, one a judge) are dealing with what lawyers should never deal with: one a grand jury subpoena, the other a grand jury investigation.  Bottom line, my opinion, both will probably rise above the fray on legal grounds  but regardless, I strongly believe both could have avoided their plights.  The key ? Do your job.  Just  do your job and refrain from negative comments and backlashing.  There is no reason to engage in personal attacks. Although it is very hard sometimes to hold back, calling someone by name “a bully” (whether or not it’s true) or threatening an FBI investigation will sometimes get you just that: bullied into a grand jury investigation to see if something sticks or the FBI investigating YOU whether or not there is anything to investigate. 

I started reading books on Founding Fathers 7 years ago  (http://foundingfathersfervor.blogspot.com/2011/01/mimi-coffeys-reading-list.html ). It all started when I read Joseph Ellis’ Founding Brothers book. In just one book I got a snapshot of the lives and interactions of the greatest men in our country who risked everything and worked together to create the world’s greatest democracy. I was hooked.  My quest for studying Founding Father literature began with that book. I NEEDED more. Not only did my mind go back in history and give me firsthand the reasons why various constitutional provisions  are what they are, I could stand up in court and better argue the law. Brilliant, right ?  So I have kept on nonstop for 7 years always reading in my nonworking spare time a book which I believe helps me understand the spirit of the Founders and this country. This has expanded into Washington’s Generals, the ladies behind those great men, etc. even encompassing   a study of the history of the French Revolution that happened at the same time. What made our leaders smart enough to bypass the masses dying via the guillotine versus the French ?  This endeavor truly made and makes me a better lawyer. What I did not realize at that time or all these years, was that reading these Founding Father books  was the perfect training ground on politics and diplomacy.  Being a criminal defense lawyer, is being a professional beggar (mitigating damages) and diplomat the majority of the time.  Only 20-25% of my cases go to trial, the other 75-80% require skill in negotiation. The Constitutional Convention- one of the greatest lessons in diplomacy that exists in this country for us to directly study (massive details left by works like the Federalist Papers, and biographies into the lives of those Founders). When I sit across a DA who holds the key and upper hand in negotiation most of the time or with a judge who has their own inner agenda,  it is a HUGE responsibility for me to maximize all my diplomacy so that at the end of the day justice happens- my client benefits.  Many a time, I have felt my blood pressure skyrocket and have had to leave to return on another designated day, a day more suitable once proper seeds have been planted and better understanding exists to finish the deal. Reading how Alexander Hamilton, although a prodigious financial genius and industrious government visionary, stifled his rise to the Presidency or had some of his biggest plans go awry because he lacked people skills in negotiating and was eventually killed by his political rival in a dual is great lessonry in diplomacy. Or studying how Andrew Jackson through an innate genius in managing how to appeal to the masses could work magic with his political enemies , or how Thomas Jefferson being the visionary personally picked out and trained two protégés James Madison and James Monroe to continue his Presidential doctrines and agendas as they took office is prime example of how if you want to be great, study the greats. This really applies to all fields but the politics and diplomacy have particular relevance to lawyers.   Many people in their zeal, although their hearts are unquestionably directed towards the benevolence for others, do all society an injustice when they communicate hateful messages for example towards President Barack Obama or Texas Governor Rick Perry. They forget the most important things which is policies don’t define us, working together for everyone’s good does.  No public servant, whether the President, the governor, the judge, or the DA (especially) does it  for the money. No politician, judge or DA takes office instantly knowing all the right things to do. We all learn through trial and error, all jobs have a learning curve and smart people never let that curve stop.  It is unfair to criticize a person maliciously for the decisions they make in their job. I can attest to the fact that some assistant DAs that I initially disdained (not that they would ever know of course), through time and experience have turned out to be some of the best and I their biggest fans. None of us can be effective by being thin skinned. We can’t take disagreements in our job personally against others, this attitude will never help others to see it our way or learn.  To effectively negotiate we must first, no matter what, see the value in others despite their positions.


 If my lawyer friends had let their zeal calm down, they might have thought twice before making statements that had no productive use other than to pin others down in a corner for which no one benefits.  I’m hoping everyone involved in that, takes a few to deeply think about what is relevant and moves on productively.   I respectfully disagree with President Obama’s statement that law schools should be two years versus three.  Not only do we need internships (like doctors after schooling for real life training), we need to add diplomacy classes and training. The best lawyers are the best diplomats. The most effective judges, DAs and defense lawyers are those who know how to get along with everyone. Only when there is mutual respect can there by possible change. For those public servants who don’t belong in office, what goes around comes around. Life has a funny way of shaking things out---- many times the right way. So young people aspiring to be lawyers, watch your FB posts, Twitter posts, and Instagram shots- be diplomatic. Don’t let disagreements be a reason for hatred and unwanted posts that no one desires to see.  Be mature and  although you can’t see the big picture yet, know that there is one. For example, the greatest politicians have capacity to bounce back and do- look at first Supreme Court Justice John Jay: after the Paris Peace Treaty his effigy was being burned in the streets (he feared for his life) only to later be elected Governor of New York.  So key words: DIPLOMACY, DIPLOMACY, DIPLOMACY. As for me, I will keep taking a breather every time someone sends me a disrespectful political email or I pass an uncouth bumper sticker- because even for them, there is always hope. 

Sunday, August 25, 2013

Bad Blood Testing Issues

We have the same issues in Texas. http://www.azcentral.com/community/scottsdale/articles/20130822judge-throws-out-blood-tests-scottsdale-dui-cases.html?nclick_check=1

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Friday, August 09, 2013

DWI- Mass Hysteria

Mass hysteria is a form of groupthink, in which several people with something in common begin to think in the same way. In mass hysteria, the group members all develop a common fear that often spirals into a panic. The group members feed off each other's emotional reactions, causing the panic to escalate.Some riots, witch hunts and other events can be linked to mass hysteria. (about.com)

 DWI has turned into a sociological mass hysteria. Our highways blare out Drink.Drive.Go to Jail. and  other similar campaigns, our radios and tv networks broadcast DWI commercials, nationwide many companies have policies that terminate an employee or refuses to hire one based on a DWI, apartment and housing complexes are turning away tenants for a DWI, families are becoming divorced over DWI.  The public is scared of DWI only second to terrorism.  This groupthink  people with something in common that started this hysteria was MADD. Now the groupthink has infiltrated the American population.  Mass hysterias of the past include the Salem Witch Hunts of the 1690s. Over 2500 people died on 'specter evidence' . In the French Revolution of the 1790s, over 16,000 were beheaded, the majority  for the mere fact they were wealthy aristocrats and no other crime as the masses would gather to witness the heads roll  off the guillotine in public spectacles. In the 1950s, Senator Joe McCarthy  took advantage of the public's fear of the Cold War by accusing many of being a Communist in the Red Scare. Predating all this was the mass hysteria of the Spanish Inquisition. In an attempt to convert all to Catholicism the government in 1478 under King Ferdinand and Queen Isabella established a tribunal to subject its citizens to an Inquisition which eventually evolved into widespread torture and over 3,000 deaths for those who would not convert.  Fear causes the masses to act irrationally. Money and politics drives governments to tyranny. With DWI, MADD conveniently has both. Fear is used to justify action and money and politics are the machines that drive tyrannical laws and sentencing.

Fear. More than half of highway fatalities are due to deficient road conditions and 59 billion a year is spent by the government on this. (http://www.autoblog.com/2009/07/02/study-majority-of-highway-fatalities-caused-by-deficient-road-c/ ).  Yet the public mistakenly believes that DWI is the number one cause of highway deaths. Laws which were meant to discourage irresponsible drinking and then driving have turned into mechanisms for punishing anyone who drinks and drives as legal definitions across the US vary from ‘impaired to the slightest degree’ to alcohol concentrations as low as .02. What started out as an attempt to enact laws that correlate to intoxication has turned into an attempt at bringing back Prohibition (neoprohibition).  Lost in the system is the person who drove who was not intoxicated but smelled like alcohol; the person who gets convicted on inaccurate breath tests  (infrared spectroscopy has widely known limitations even admitted to by state scientists), the person who gets convicted on balance tests which have no scientific correlation (outside of criticized NHTSA funded studies that don’t meet minimal criteria for scientific peer review per the sfst creator’s  own admissions- Dr. Marcelline Burns “it’s getting there”); the person who gets convicted on blood tests in states like Texas where there are no regulations for what is acceptable standard operating guidelines and where unacceptable practices like single point calibration which reports inaccurate results is the norm.


It is time to bring back common sense to the DWI table. Just as Senator Alan Simpson released a report on Joe McCarthy on the Red Scare that eventually brought it to  a close, we need to stand up to MADD. We need to change Mothers Against Drunk Driving (albeit started with good intentions)  into Masses Against Deceptive Disorder. We need to demand laws that reflect science not a groupthink’s  ‘morals’.  We need to demand DAs and Judges stand up for evidence not junk science and moralistic grandstanding. We need to end the mass hysteria and start responsible actions toward justice.  It is not illegal to drink unintoxicated and then drive. We need to stop the public flogging of our own citizens in the manner which exists today. We need to honor the Constitution’s 8th amendment which forbids unreasonable punishment.  It is time to take back America and the honored freedom to drink and then drive responsibly. How can we follow the laws when the laws are not ethical, legal and are unconstitutional ?  In conclusion, as our proprietors who make and sell alcohol remind us: Drink Responsibly.   Let’s stop the mass hysteria. Mimi Coffey

Thursday, August 01, 2013

Advice If You Get a DWI

Mimi Coffey Words to Those Accused of DWI:
If you get arrested for DWI please do yourself a favor:
  1. 1.       Write out a 10 page autobiography of yourself (a recent Harvard grad told me his high school forced him to do it and it helped him fill out a successful application to Harvard). Focus on your achievements, what makes you shine above and beyond others, your contributions to society.
  2. 2.       Pick out ten pictures that define your life (kids, being a little league coach, a wedding pic) and buy a mini photo album and make a pictorial storybook that highlights your life(or go to shutterfly.com and make a photo book with your explanations and narrations or places like Walmart do this too). 
  3. 3.       Write out on paper the two biggest challenges in your life and what you did to get over them. Detail how long it’s been since then and how you now look back at those challenges and take pride in overcoming them and the positive it brought forth.
  4. 4.       Ask 3 people to write character letters about you (tell them you may need them for court). Direct them to simply stick to character and good acts (nothing about the  DWI charge) and elaborate in a manner that someone who has never met you gets a good feel for you by reading it.
  5. 5.       Make 2 new goals/challenges for the future that you have always hoped to achieve and a game plan with a time deadline for achieving them (eg. run a marathon, lose 30 lbs, etc.). Start on them right away. Maybe you can even achieve them before your case is resolved. It gives you a healthy focus.


Take these tasks very seriously, as if your life depended on it. Make it as comprehensive and professional as possible (a judge  or DA may very well see the top 4 tasks).  Try to work and look at these things anytime you start feeling anxious, mad or depressed about your pending DWI charge.  It is very important to do these things to remind you, that a DWI charge does NOT define who you are.  You had a life, you have a life and life will go on with all the great things about you despite the outcome of this DWI charge. Show this to your lawyer.  Bring it to court. Keep this by your bed.  Gain strength from the positivity of your life and what you have contributed to society. Know that your judge, DA, your lawyer, your jurors, your probation officer, jailers, or parole officer if applicable- NOT a single one of them are perfect or blameless.  All of them if they do their job right will be and should be most concerned about the whole package: who you are and what you do for society. Don’t pigeonhole yourself into needless depression. There is nothing you can do to change the facts of your DWI arrest, focus on bringing  truth to light or mitigating the damages. Don’t let the justice system or anyone in it tear down the great person you are. We all make mistakes. Society needs you to come back even more fierce and more positive. Remember, the greatest heroes of all time have overcome challenges (in DWI- George W. Bush had a DWI and later became President and Vice President Dick Cheney had two). DWI is the only offense where cops go hunting down social drinkers like prey.   Don’t let them destroy your spirit.    Mimi Coffey


Sunday, July 14, 2013

Trayvon Martin

Now that the verdict is in, a few thoughts:
1. Trayvon Martin was a 17 year old kid who purchased his iced tea and Skittles from a neighborhood convenience outlet and was walking home in his own neighborhood. THIS IS NOT A CRIME NOR IS IT ILLEGAL OR SUSPICIOUS.
2. Zimmerman was told by 911 to stop following Trayvon. 911 operators are trained on what actions to take and recommend. Zimmerman articulated NO reasonable suspicion for police intervention much less his own. Zimmerman showed total disregard for law enforcement by taking matters into his own hands.
3. A NOT GUILTY verdict does NOT mean Zimmerman is innocent. As it is not uncommon in murder trials with no direct eyewitnesses, Zimmerman benefitted because his was the ONLY side of the story presented.
4. Zimmerman lied about very basic stuff: the streets involved (maybe he was trying to throw off cops from neighborhood witnesses), the screams being his (when he first heard the screams played by the detective he said that it didn't sound like him); these are not arguments- these are all documented facts. Why relevant ? He is the only one ALIVE left to tell the story. Those screams 'being his' proved to be the bedrock of his self defense theory that got him a Not Guilty. Despite a neighbor being there (directly hearing them) telling police at the time it was not a grown man's screams.
5. 6 jurors on a murder trial. It is acceptable to have 6 jurors on a misdemeanor, but not on a felony. This should have been a 12 person jury. Florida needs to revamp their laws. Most states have 6 on misdemeanors and 12 on felonies. There is a legal and common sense reason to this. When the stakes are higher, there must be MORE consensus from the community.
6. Outside factors.  Little things to judges such as keeping jurors till 10 pm can backfire. Here the defense was audible in their complaints. The judge staunchly held firm. The jurors could have really identified with the defense lawyers and started subconsciously seeing them as their mouthpiece and savior as well (as jurors have very little say on the  proceedings until deliberations start).  It is never good to for jurors to feel punished. This can produce sympathy and bias for the defense. Jurors do not like to feel as if they are in jail throughout the process. Many judges make the mistake of ignoring normal social protocols honored in the workplace when it comes to reasonable work hours.
7. It would be a mistake to give any media publicity to these jurors. This trial is already about one tragedy. Any juror willing to make money off the life of this young 17 year old boy does not have the proper judgment to be listened to. Any business or media outlet willing to pay for it contributes to desecrating the honor of an innocent young man. Whether or not Zimmerman is innocent, it is a fact that 17 yearold Trayvon Martin, unarmed and walking home in his own neighborhood  being chased (fact by the 911 call and timing of events) is innocent. It it also a fact that Trayvon Martin under these circumstances is legally entitled to self defense.
8.  The sad lesson here. Most men I know would turn around and fight someone following them at night. What this verdict states is you better  kill that person because if you don't, he will kill you and get off. An example of this same flawed mentality nationwide is you are better off risking driving home intoxicated because if you do the right thing and park to sleep it off you will still be arrested for DWI.
9. Had George Zimmerman been an unemployed man living off welfare who did the same thing versus a man with police connections and his self appointed position of 'neighborhood watch' we wouldn't be discussing this case. He would already have been convicted. I see this all the time with DWIs, police officers even when they are wrong are always given extra credibility and backed up. It is time we stop this. This is the public's fault. DAs do it because of verdicts like this one.
10. Young people do not be scared. There are still people like me who are out there to protect you and your rights. You keep on living. You keep on going to the neighborhood store to buy your iced tea and Skittles. Our Founding Fathers sacrificed and fought for us to have those rights: the simple pleasures to be free and to live without  fear when we are doing nothing wrong. THOSE 6 WOMEN DO NOT REPRESENT THE REST OF US. Their verdict does not represent how the rest of the nation feels, just theirs.  I would have made Zimmerman answer for his crime.

Postnote
Zimmerman appeared on Hannity Live yesterday. When asked if he regretted getting out of the car and following Trayvon that night, he responded "No Sir." When asked if he regretted having a gun on him, he responded "No Sir." What more needs to be said ?


Monday, July 08, 2013

What the Public Needs to Know About Lawyers

Catchy title, right ? Deliberately chosen for two reasons: 1) if the public becomes aware then changes may actually occur and 2) most people who need a lawyer NEED to know this. The two major points are:  the way lawyers practice and become licensed needs drastic improvement and the old stereotype of lawyers is wrong. First, a fact: there are TOO many lawyers. Another fact: people don't like lawyers. They generally rate them next to car salesmen in most untrusted professions. The problem: why are there too many lawyers ? The old stereotype of parents wanting their kids to be successful so they encourage them to be doctors or lawyers has come and gone. Doctors maybe still (mainly because there is a shortage of them, they come at a premium), but most lawyers are lucky to find jobs coming out of law school (it's amazing how many resumes I get every time I have an associate position open) and very few out of law school start at 85k. The average criminal defense lawyer on their own makes 50k a year. We are living in a day and time where MANY kids who go to law schools never practice. They end up finding other jobs in industry because the money in law can't compete and there are not enough jobs. To compound this problem, MORE tax payer dollars are being spent to create more law schools at a time where there is a surplus NOT a need. In the DFW metroplex alone, SMU has a distinguished law school of many years, now a TWU law school and a new one from University of North Texas is being built. Why ? We should ask our legislators. Apparently, they are not plugged in. If anything at all, it will create more contenders for their elected positions (lawyers predominate elected positions in the state house and senate).  So what does this mean for the public besides more people on the unemployment rolls and dashed dreams and visions ?  More hungry lawyers without jobs resorting to desperate marketing and taking cases for which they are not prepared to render effective legal services. Which brings me to the practical point of what the public knows.

It is still generally true that most people think if they have a problem, any old lawyer can fix it whether it is a family law, criminal law or contracts issue. Despite the board certification process, most of the public thinks hiring a board certified lawyer is too costly and just anyone can do even when not in that field. The truth is you can't afford not to hire a specialist. Most people think law schools teach lawyers how to handle every kind of problem, NOT true.  Law school basically teaches someone how to read massive amounts of literature of which they are then tested on their memorization skills. Most law schools allow at least 50% of the curriculum to be chosen by the student. So, who knows you may be hiring a lawyer to handle your tax issue who never even took income tax in law school ! Better yet, they may have majored in English and know nothing whatsoever about taxes !  Pitiable, but true. Because law schools are so hard to get into, the reality now is that liberal arts majors with high GPAs are comprising most of the students being accepted due to a law school's formula of high LSAT score and high GPA. This is the first major problem. The world needs liberal arts majors: editors, social workers, psychologists but when it comes to lawyers it needs critical thinkers: science and math majors whom of course, their GPAs due to the hard subject material almost never compares. I still face liberal arts backgrounds assistant district attorneys whose eyes glaze over when I discuss margins of errors. (Why relevant ? If you are going to punish someone at .08 or .15 then the confidence level and margin of error of that number is damn important). Law schools have not woken  up to this fact yet. They still continue on an ancient formula started back in a day where they were lucky to have people want to go to law school. So necessary improvement number one: start admitting people who can mathematically calculate and scientifically question.  NEED FOR CRITICAL THINKERS. Start requiring a basic requisite hours of science or continuing legal education for lawyers who want to practice in a certain field (for example criminal law which is based on forensics or patent law).

The second problem is how easy it is to get licensed. Once you graduate from law school, although you have never practiced a day in your life- once you pass the bar exam you get  the golden license and green light. Super scary thought. The bar exam does not teach you how to practice, it tests you on how much you have memorized in a half dozen topics.  I have a judge friend who laments to me how mad and frustrated she gets when she has a lawyer in trial who does not know the basics and his/her client suffers unfairly for this. My friend also gets aggravated when new lawyers approach her with wrong motions and misunderstand the proper remedy for what they are trying to do. Why ? Because there is no substitute for experience.  Architects in order to become licensed must submit 5600 hours of "intern development program" training hours (all signed off by a licensed architect in many different areas of architecture) just to sit for the Architectural Record Examination (7 tests to become licensed). Under the original Hammarabi's code, if an architect built a building and it fell and killed someone the victim's family could kill the architect. That kind of responsibility still carries over in how hard it is to become a licensed architect due to the importance of the job. There are hundred thousands of people with architecture degrees working the architecture industry but only a hundred thousand licensed architects. It takes most architects 8-9 years on average to satisfy the 5600 IDP hours because it must be earned in so many fields.  In law, we have people with no experience representing accused murder defendants and prosecutors with no real training in science locking people away on toxicology results they don't know enough to even question. Very scary considering recent scandals of lab workers from Mass. to Texas caught falsifying results. Second necessary improvement: we NEED an intern program before getting licensed. Even back in Abraham Lincoln and the Founding Fathers day one had to intern with an experienced attorney before getting licensed. We owe this to the public.

Practical example. Recently, on top of my Founding Father hobby (reading books so I can better argue the original intent of the law) and running,  I decided to take up sewing for fun as a hobby. I thought to myself- how hard can this be ? It took me months before I found a place that would sell me a sewing machine and give me an hour and a half lesson on the spot on basics because I have NO time for lessons. Thinking I knew how to thread a needle and wind a bobbin, I went out and bought material thinking I was going to create magnificent and stunning clothes that could not be bought at shops. My first mistake was in thinking I could start with no pattern. My second mistake when I finally succumbed to buying a pattern, was thinking I could cut the pattern and just sew. (My first top would not even go over my head it was so tight). I quickly came to realize that although my desire was great, there was a science in learning how to cut a pattern, a language to learn in understanding how to sew a pattern and these were just the basics. Doing buttons and zippers and blind hems were on a whole different level.  This made me think about law. I remember my first few trials when I was so frustrated not realizing that it wasn't so easy to get evidence admitted, that I had to memorize and learn the song and dance that it required and know how it could go wrong in so many ways with so many objections and how to respond. I learned the hard way. Just like with sewing, I had to practice. The books and directions don't really teach you how to pick the perfect trim, it's a talent but most of all you have to learn through trial and error.  I think it is downright criminal to turn newly licensed lawyers on the loose to the unaware and trusting public. You just can't expect a lawyer without the proper training (that's not law school, that's real cases) to do it well.  I may be a beginner at sewing, but in 18 years- I no longer "buy the patterns" with my DWI practice.  I make the patterns, fully customized to my cases. My DWI practice has progressed well beyond cookie cutter forms. I read the new cases and understanding the law and all its nuances create my own "patterns" (motions).  When it comes to picking out the perfect fabric and trim- after 18 years of constantly trying cases I can instantly know whether or not I want a juror by merely watching their reactions, reading their face and juror questionnaire (knowing what is important versus irrelevant). It even encompasses meaning  from interpreting why they chose the clothes they wear and who they choose to talk to (to determine their ability to influence others). I know almost everything I need to know before they even open their mouth. I have honed an ability to take their DWI temperature like a doctor's looks at a patient before they even take their temperature. I teach my associates this. I train my associates in all the complex nuances of DWI law. There is nothing more important at the Coffey Firm than all of us all honed in on trying to avoid a conviction or mitigating the damage when a conviction is unavoidable. Now ask me to do a divorce and although I am an experienced trial lawyer, I could not tell you jack about who would or wouldn't be a good juror.  The law is complex. It is not one size fits all. The average Joe Blow of the public is fooling himself if he thinks a cardiologist can perform brain surgery, the same with law.  It is time our state bars protect the public against gross malpractice and improper training. We need a required internship program under experienced lawyers. We need more board certifications in specialized areas (I myself spearheaded the DWI board certification recognition in Texas).  People's lives: divorces, money judgments, possible prison sentences are too important to leave it to rogue lawyers desperate to make a buck. We need to take back control of the lawyer licensing process (limit the number of lawyers) so that thousands of young people don't waste hundreds of thousands of dollars to go through law school only to end up with no job. That simply is not fair.

I hope that this piece either directly helps someone or inspires needed change.  I always offer to help other lawyers on DWI. I share my legal motions and voir dire powerpoints  with other lawyers. I will continue to travel the state and country to help train other lawyers through my unpaid speaking engagements and will continue to publish.  The law has given me a chance to practice my talents, I in turn want to give back by helping others as much as possible.