The Matlock Blog

No thank you. I'm driving.

You really have to hand it to those Texas legislators.  I feel warm and fuzzy knowing they are doing everything they can to ensure Texas is a great place to live and work.  And if State Representative Chente Quintanilla of El Paso has anything to say about it, much safer.  Perhaps, too safe?

Representative Quintanilla has filed this doozy.  This bill would make it illegal to do much of anything while driving, except driving.  

Quintanilla wants to make it an offense for a driver to do any of the following: 
                   (1)  reading;
                   (2)  writing;
                   (3)  performing personal grooming;
                   (4)  consuming food or a beverage;
                   (5)  interacting with a pet;
                   (6)  interacting with a vehicle passenger;
                   (7)  using a personal communications device; or
                   (8)  engaging in another activity that prevents the operator from safely operating the                            motor vehicle.
             (b)  For the purposes of this section:
                   (1)  "Personal grooming" includes:
                         (A)  applying makeup;
                         (B)  shaving;
                         (C)  combing hair; or
                         (D)  attending to another personal hygiene or appearance task.
                   (2)  "Personal communications device" includes:
                         (A)  a radio;
                         (B)  a personal stereo;
                         (C)  a compact disc player;
                         (D)  an audio or video device;
                         (E)  a personal computer;
                         (F)  a two-way radio, including a citizen's band radio;
                         (G)  a pager;
                         (H)  a telephone;
                         (I)  a wireless messaging device;
                         (J)  a facsimile machine;
                         (K)  a radar detector;
                         (L)  a personal digital assistant;
                         (M)  a geographic positioning system receiver; or
                         (N)  a similar device. 

So, let me get this straight.  I'm driving and I can't talk to anyone in the car with me, nor can I change the station on the radio, nor change the CD in the CD changer, nor get the hair out of my eyes, nor take a drink of my Route 44 Coke?  Talk about safety.

Being the lawyer I am, I'm curious about the definition section though.  My hair is longer now, yet I don't really use a comb, rather I just use my fingers.  Is that "combing hair?"  How is a radio a "personal communication device?"  You can't use a CB radio?  Aren't CBs specifically designed for talking while driving, i.e. "Snowman, you got your ears on son?"  (Yeah, I learned to drive by watching Smokey and the Bandit.  So what?)

I'm sure Mr. Quintanilla had the best intentions with this bill.  But maybe he needs a new Legislative Assistant, because this is just silly.  Texas is a big state.  In fact, it's a pretty damn long drive from here to my parents home in Midland.  I can only assume it is even longer from Austin to El Paso for Mr. Quintanilla when he drives home.  

Does he realize it will be longer for him because according to his bill, he would not be able to eat or drink anything on the drive home?  I hope he likes the radio station he has it on (if you can even find one through south central Texas).  That's going to be a long trip when you can't talk to anyone either.  Hope he doesn't get thirsty.  

This bill just reaffirms my belief that the Texas legislature is not exactly the best and the brightest we have working for us, but rather the lowest common denominator of public service.

But what the hell do I know?

Next?

Apparently, there are currently 55 vacant federal judicial openings awaiting President Obama.  Of those 55, 19 are considered "Judicial Emergencies."  A "Judicial Emergency" is actually defined, courtesy of www.uscourts.gov,  as "

Circuit court any vacancy in a court of appeals where adjusted filings per panel are in excess of 700; any vacancy in existence more than 18 months where adjusted filings are between 500 to 700 per panel. District court any vacancy where weighted filings are in excess of 600 per judgeship; any vacancy in existence more than 18 months where weighted filings are between 430 and 600 per judgeship; any court with more than one authorized judgeship and only one active judge.

 Of those 19 emergencies, only one is in Texas.  U.S. District Judge W. Royal Ferguson, Jr., most recently of San Antonio, but, at least to me, more memorably from Midland, took senior status last year.  He was the only Federal Judge in Midland, and in Pecos (if you can believe Pecos actually has a federal courthouse) when I first returned following moving back after law school.  

So, I guess the Western District of Texas will be the Obama guinea pig for Texas federal judge appointments.  

In case anyone in the current administration is reading, I would be happy to accept such an appointment.  Don't mind all those bad things I wrote about you before the election.

My Client's a Moron, But That's Not Against the Law

Ah, yes.  One of my favorite lines from one of my favorite movies, A Few Good Men.  I have, on occasion, used this line when discussing the actions of a client.  Now, as it turns out, I can use it to discuss prosecutors.  Seriously.  Thank our good friend SCOTUS.

As Scott Greenfield over at Simple Justice brought up, SCOTUS delivered the opinion of Van de Kamp v. Goldstein.  Apparently when you're incompetent, and you're a prosecutor, you're completely immune from a §1983 suit.  Therefore, you can be a moron, but that's not against the law.

It seems that poor Goldstein was convicted and spent 24 years in a California prison because the prosecutors failed to provide the defense with Giglio material.  Specifically, the prosecutors didn't turn over the fact that the snitch who testified against him and got him convicted was a liar and was paid for his testilying ways.  Goldstein sued the prosecutors for not having a way to maintain even a semblance of competency in keeping track of which snitch was lying and which was being paid off, or both.

SCOTUS decided that it might be too burdensome to ensure the government didn't screw the proverbial pooch.  I mean, after all, county employees should be able to say "My bad" when it comes to administrative screw-ups.  Hell, so would I.  The problem is, when I screw up that badly, there's actually a term for it.  It's called Ineffective Assistance of Counsel.  Or contempt.  As in, "Mr. Matlock, you weren't in court as scheduled, I hold you in contempt."

But what the hell do I know?

And the other shoe drops

Defense attorneys don't like prosecutors.  Prosecutors don't like defense attorneys.  Water is wet and the sky is blue.  What's new?

I recently allowed an anonymous prosecutor (no, I'm not saying who it is, ever.) to post the Top Ten Things Prosecutors Hate About Defense Attorneys.  In it, my helpful prosecutor discussed the things prosecutors, or at least this one, dislikes about defense attorneys.  It has created quite a stir.

First let me say that I hope to do a Top Ten list of the things defense attorneys dislike about prosecutors at some point.  But just not today.  Instead, I thought I would point everyone to a little something called the Texas District and County Attorneys Association Community.  This is a nice little online community posting board allowing prosecutors from around the state to comment on various subjects.  This blog is a subject.  I'm flattered.  I'm blushing now.

So it seems some of our steadfast Texas prosecutors have taken it upon themselves to post additional complaints about defense attorneys.  I felt, as always, compelled to relay these serious concerns of the government employees.  Because as is my nature, I can't shut up (just ask my wife) I thought I would add a little running commentary to the complaints.  They're in red. 

And without further delay, here are the additional complaints found in the largest complaint box of the largest group of government workers.  At least of which I know.  But again, what the hell do I know?

11. Don't show me photos of the defendant's kids. He had those kids when he committed the crime and he didn't think about them then.  Fair point.  Sounds like a rookie tactic.   But then again, defendants are people, too.   They have kids.  Since we talk about the alleged victim's kids, it seems only fair to discuss the defendant's kids as well.  You are looking for justice, right?

12. Don't bring me a letter from the defendant's pastor. Out-on-bond conversions mean about as much as a jailhouse conversion.  Seems pessimistic.  Almost narrow-minded.  Might want to go to Sunday School more.

13. Don't bring me a letter from the defendant's grandma. Really.  Fair enough.  But who doesn't like grandma?

14. Don't think it will work to engage in a philosophical debate about the goals of the criminal justice system. We'll have to agree to disagree on this one.  Probably posted by someone who, within the next five years, will be practicing as a defense attorney with a nice yellow page ad flaunting being a "Former Prosecutor."

15. (This probably falls under #10 of "Rudeness") Don't make an appointment for 1:30 and then breeze in at 2:30 without calling.  Common courtesy.  Kind of goes both ways though.  Don't tell me the tape or photos will be will be ready by a certain time only for me to find out from your assistant they aren't.  

16. Strive to make an appointment with me, instead of "just dropping in" and expecting me to provide discovery and discuss the case for several hours.  No problem there.  Again, common courtesy should rule.

17. Try to not respond with every plea offer I make with the phrase "How about 12.44"? It should be evident that if my offer bottom line is 45 years TDC on a child molester that I will not be considering 12.44.  Generally, I would be okay with this one.  But considering how many prosecutors make the statement "I'm open to other offers, but I'm not going to negotiate with myself" it seems a little naive.

18. Do not tell me that I should agree to a reduced bond or fine because of all the money the defendant had to pay you.  Nah, that $10 million bond set by the local yokel municipal judge seems appropriate.  I mean it is a State Jail Felony!

18a. Please also do not tell me that if your client bonds out he will use much of your fee money for a bond, and thus you need a massive reduction or a PR bond, particularly on a violent criminal.

Greg's Agg Sexual Assault of a Child case Rule: Please don't tell me the 5-12 year old victim is a hussy and a slut and that the victim was asking for it. It actually goes over worse with me than it would with a jury, and you know you'd never say those things in front of 12 good and decent people.  Speaks to a fundamental difference between defense attorneys and prosecutors that I feel obligated to post about later.  

19. Never start a plea negotiation by telling me what they always do in some other county.  And I'm arrogant?  We can all learn something from someone else, right?

20. Never tell me how to do my job based on your experience as a prosecutor.  Believe me, you don't have to worry about that from me.

21. Know and understand the law of parties and how it applies to your client's situation.  Hello pot.  I'm kettle.

22. When telling me what your client will plead to, please do not preface that with a reference to your client's cadre of jailhouse lawyers and how they are telling him to threaten a greivance against you. I won't feel sorry for you because there are plenty of prosecutor jobs out there if you don't like being a defense attorney.  I'd rather kick my own ass.

23. Do not take my exhibits during trial. You had plenty of time to make your own copy of the photographs. If you want to admit something into evidence, admit your own stuff.  Wah!!  You don't want me to play with all the stuff you admit during trial to use to my benefit, you should think about that before you put it into evidence.  Boo hoo.  Oh, I feel so sorry for you!  Grow up.

24. If you need a reset because your client hasn't fully paid his fee, just say so. Don't make up lies and excuses.  Again, lying is bad.

25. If you have proof that the defendant is innocent, provide it early in the process. Medical records. An alibi. Bank records. Whatever. Prosecutors exonerate more people than any Innocence Project has ever touched. We do so through dismissals, no bills and downgraded charges.  I think this falls under Bennett's Nasty Little Surprise doctrine.  But I'm reasonably certain allowing an innocent defendant to plead to a lesser charge is not exonerating him.  Maybe that word doesn't mean to you what it means to me.  Or Webster.

Enjoy.

Separation Anxiety

Should the government be able to use internal judiciary investigations as the basis of a criminal obstruction of justice prosecution?  That is just the issue raised in the federal prosecution of United States District Judge Samuel Kent of the Southern District of Texas currently pending.

On January 6, the federal prosecutors obtained a superseding indictment against Judge Kent adding three additional counts; one count of aggravated sexual abuse, one count of abusive sexual contact, and one count of obstruction of justice.  These are in addition to the original three counts which included two counts of abusive sexual contact and one count of attempted aggravated sexual abuse.  

The sexual abuse counts are standard federal counts pursuant to 18 U.S.C. §§ 2241 and 2244.  However, the interesting issue is the obstruction of justice charge pursuant to 18 U.S.C. § 1512(c)(2).  That section forbids a person from improperly obstructing, influencing, or impeding “any official proceeding.”

What makes the charge unusual, and potentially problematic, is that it stems from a civil investigation by the United States 5th Circuit Court of Appeals itself.  The Judicial Conduct and Disability Act of 1980 allows the respective federal circuits to discipline district judges and establishes an internal judicial procedure.  

The question becomes can and should federal prosecutors be allowed to utilize the independent civil investigation by the judiciary as a basis for a criminal prosecution?  Certainly making misstatements during an official proceeding of any kind can subject the person to to criminal prosecution, but should there be concern in this case?  Does this cause separation of powers problems?

Obviously as a general rule, we advise clients against making any misstatements during such a proceeding.  Whether a disbarrment  hearing or a civil deposition, they can all result in criminal prosecutions.  But should there be an exception for the judiciary, or perhaps better said, does the separation powers mandate such a result?

I’m of the opinion there should be.  If the judiciary is given the opportunity to investigate and take action on fellow judges as is provided by the Judicial Conduct and Disability Act, then it should remain within the judiciary.

This is not to say that judges are immune from criminal prosecution.  As is the case in the Kent matter, clearling there are standard criminal allegations stemming from his alleged conduct that can be prosecuted.  But the independent, non-partisan, internal civil investigation by the judicial district itself should remain in house and away from the clutches of politically-appointed federal prosecutors.

My name is Shawn Matlock, and I have been racially profiled. Again.

Yeah.  I know.  I am a danger to society.  A menace.  A criminal in waiting.  Except, not.

It appears our friendly neighborhood  Fort Worth Police Department have it out for me.  Again.  If you will recall, I posted some time ago (can't remember when, though) about driving the back way to my house from the local Lowe's and getting pulled over for "fitting the profile" of someone that shouldn't be in the area.  It wasn't a nice part of town and I was dressed as anything but a lawyer.  The officer asked to search my car, I protested, and I thought I was going to jail.  

While I certainly never agreed with the search request, I could at least understand where the cop was coming from, but only if I ignored everything I learned in law school and what I believe in and realized I lived in a police state.  And even then, only slightly.  You see, I was in my car with the windows down and music blarring (if I recall correctly, it was Jay-Z (bad white guy!)).  My hat was on backwards also.  So, of course, I was a threat.

This afternoon, however, I couldn't have looked any less threatening.  

I needed some pants altered.  As it turns out, there isn't really a tailor in downtown Fort Worth.  However, there is one on the South Side.  The South Side is an historical area of Fort Worth south of downtown.  The homes all date to roughly the 1920's to the 1940's, and it is somewhat of an up and coming area of town after having fallen into disrepair over the years.  I know this because we used to own a renovated 1940's bungalow house in the area.

So, this afternoon, I took a pair of pants to have them altered.  I knew where the tailor was located, and I figured since I was over there, I would swing by the old house to see how it looked.  (The neighborhood was always a little "iffy" which is why we moved)  Strangely, I noticed I had a visitor.  The fuzz was trailing me.

Driving from the tailor (just off of 8th Ave. and near Berry Street if you're looking for a good tailor) to the old house takes you through a rough area of town, admittedly.  I suppose the white guy in a shirt and tie in a Land Rover looks "suspicious."  I drove through the neighborhood to the old house and slowed down to take a look at it and the area.  Big mistake.

This appeared to cause the officer some concern, as he would later tell me.  As I was driving away, there was some road construction so I couldn't go the way I wanted.  Since I was in the area, I thought I would drop by a friend's office which is also in the area, sort of.  Another big mistake.  

It only took the officer three blocks of following me through the side streets to decide to pull me over.  Shockingly, I was speeding.  30 in a 25.  Who drives that slow?  

Once I was pulled over, the officers "approached the vehicle."  (Said in my best officer voice.)  One officer to the rear passenger side and the other to the driver's side.  The driver's side officer asked for my license and insurance, and he ran it to discover that I have no outstanding warrants.  I was relieved.  

The back area of the Rover has a pull-down cover so you can't see what might be back there.  This seemed to cause the other officer some concern because he told the other officer that he couldn't see.  When the driver's side officer came back, he asked what I was doing in the area.  "Driving."  Perhaps too abrupt?  

"What is someone like you doing in this part of town?"  Of course, me being me, I really wanted to say I was looking for some crack, but that since the officer was there, if he could direct me to the closest Krispy Kreme I would appreciate it.  I held back.

I told the officer I was just driving and looking at the neighborhood and was on my way to "my lawyer's office."  And then, it came.

"Do you mind if we look around in your vehicle?"

Luckily for me, I had already taken out the 10 kilos of cocaine, the bloody murder weapon, and the WMDs.  But my distrust for these officers remained nonetheless.  

"Why?  What would you expect to find in my car?"  No specific response was given.  They would "just like search your vehicle."

I couldn't help it.  It was like a reflex at this point.  

"Do you have a warrant?"  

"Did you see me do anything illegal?"

"Did you see anything be placed into my car or taken out?"

"Do I have a warrant for my arrest?"

"Are you arresting me for something?'

And so it continued for a few minutes, with some shockingly incorrect answers from the cops at times.  For example, "You were speeding which is against the law, so we COULD arrest you for that."  Actually, no.  Despite the Lago Vista case, there are two things for which a person cannot be arrested in Texas and they are Open Container and SPEEDING.  (*As an aside, this was ironically on the TCCDLA list serve as a topic recently.  I need to read the list serve more often.  It might save my life one of these days.)

So after the officers were thoroughly frustrated, the lead officer said simply "Have a nice day, sir.  Drive safely."  And just like that, they were gone.  

Oddly, I never got that ticket.

Guest Post - The Anonymous Prosecutor Vents

It seems that the purpose of blogging from the criminal defense bar is to complain about ignorant prosecutors that don't understand the lives of criminals defendants, or to talk about how great you are as a defense attorney.  I realize there is a certain marketing aspect to the legal blog, but come on.

I approached Matlock about posting something on his blog with the understanding that it was COMPLETELY anonymous.  With that understanding, I wanted to put a quick spin on the daily grind from your friendly neighborhood prosecutor's perspective.  

Therefore, I present my Top Ten Things Prosecutors Hate About Defense Attorneys

10.  General Rudeness.  This should go without saying, but it seems that defense attorneys forget this all too often.  We work together on a daily basis.  Be civil.  Being rude is never going to help your client.

9.  Forgetting I have other cases, too.  Yeah, I have other cases.  In fact, I might actually have more ongoing cases than you.  Don't feel slighted if I can't drop everything to do your bidding.  On that note...

8.  Expecting me to do your job for you.  It's a crazy system, but I have a job and you have a job.  The judge has a job and, well, you get it.  Just because I know what you should be doing in a given case, and you know I know what you should be doing, don't expect me to do it for you.

7.  "Expecting" anything to be done on a case.  Every case is different.  Every criminal defendant is different.  You know this and I know this.  Don't walk into court and "expect" me to make you the same deal.  

6.  Forgetting I have a boss and office policies.  I don't get to make this stuff up as I go.  As much as I would like to dismiss the crappy case, I can't.  As much as I would like to reduce it to a misdemeanor, I can't.  I have a boss.  We have office policies.  If I want to have this job next week, I have to follow them.  Don't like it, then take it up with my boss.

5.  Acting like a bigshot.  Guess, what?  You're probably not as good as you think you are.  I know you have to look good in front of your clients, but it should stop there.  Yes, there are those of you that are good at what you do, and there are those of you that shouldn't be let in the front door.  We know who you are.

4.  Don't know the law.  This is really not that hard.  You should never show up to court without at least having read the applicable statute, and...

3.  Don't the facts of the case.  You should also know what the case is about.  They are your clients, right?  I shouldn't have to tell you anything about the case, at least not here in Tarrant County where we have an open file policy.  

2.  Don't come prepared with your file.  Tarrant County is a terrific place to be a prosecutor.  The office is fantastic.  An example is that the District Attorney's office is digital, that is defense discovery is available via the internet.  While I don't pretend to understand how it works, I know that defense attorneys can download the discovery.  Showing up to court and "expecting" me to show you the case on my laptop is not going to work.  Ever.

1.  Lying.  This seems so obvious that I feel bad about including it.   But it's true.  We work together on a daily basis.  Chances are, we will work on dozens of cases together personally throughout our respective careers.  Don't lie.  If I am too careless to do my homework and find out your client has two prior felony convictions, that's on me if I don't even bother to ask you.  But if I ask you and you lie to me, bad things happen.  You may slide it by on this case, but sooner or later we will find out if you lie, and you will lose any credibility you have with me and my colleagues.  Remember, we talk about you as much (or more) than you talk about us.

An end to straight-ticket voting?

No, this has nothing to do with criminal law.  Well, maybe it does.  It seems a San Antonio State Senator, Jeff Wentworth, has decided to try to do away with straight-ticket voting in Texas, again.  

According to a story in the Fort Worth Star-Telegram, the straight-ticket option has been around in Texas since 1911.  I did not know that.  I also didn't know that only 16 states actually allow this type of voting.  

Personally, I don't care that much about it one way or the other, except that we still vote for our judges.  Here's my problem.  Sometimes, the best judicial candidate might not be in the party majority.  I know, I know.  Hard to believe isn't it?

I've said before that I don't know that an open election for judges is the best way to ensure the public has the best judiciary available.  However, if we are going to have elections, why not at least ensure the voters are at least willing to consider the contest?

With straight-ticket voting, Joe Moron Sixpack can push one little button to vote in every single race.  That's democracy?  My preference would be that every voter has to actually vote for every single candidate or issue they favor.  No express-lane-voting.

If you do away with straight-ticket voting, the judicial candidates might actually have to campaign instead of relying upon the big "R" or "D" next to their name on the ballot.  If that happens, perhaps someone will actually pay attention to whom they are voting.

When judges are on the ballot like political candidates, they should at least be treated as political candidates.  But since too often they are low on the ballot and generally an afterthought, especially in straight-ticket voting, they are put back on the bench with little thought.

There are any number of ways that the "election" of judges could be changed for the better.  Perhaps an appointment process from the governor?  Maybe too, or just as politicized.  Appointed by one of those really cool-sounding "blue ribbon" commissions?  Probably not.

Of course my preference would be that only attorneys vote for judges, but that's probably never going to happen.  I miss Alexander Hamilton.  But what the hell do I know?