The Matlock Blog

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It sounds too ridiculous to be true.  If anyone should know what crimes the police can charge you with, it should be the police, right?  I mean am I asking too much for the cops to know what the hell they are doing?  Really?

Well, apparently not so much with the Dallas Police Department.  The DPD decided to give a number of drivers some tickets for not speaking English.  Yep, you read that correctly.  Not.  Speaking.  English.

According to a number of stories over the last several days, the DPD has ticketed almost 40 different drivers over the last three years for being a non-English speaking driver.  The problem is that's not against the law.  Now admittedly, there is a federal law for commercial drivers dealing with this, and there is the infamous 287(g) federal program that deputizes some local law enforcement to enforce federal immigration law.  But that's not what this is.

It seems the poor police officers were confused by there pesky in-car computer.  According to the officers, the pull-down menu allows them to issue a citation to a driver for not only speeding, illegal U-turn, improper turn, but also "non-English speaking driver."

They were confused.  By their computer.  Really?  Are these cops so out of touch with reality that they thought this was proper?

The bigger problem with this is the response from the cops themselves.  According to the CBS 11 story, Glenn White of the Dallas Police Association thinks its unfair to blame the cops for making the mistake.  We should really be blaming the computer makers and the officers' superiors.  Really?

According to White, it would be unfair to label these officers as being racially insensitive.  "It's wrong.  It's absolutely wrong."  White fears the officers will face future scrutiny in court cases involving minorities.  Ya think?

Let's see.  I have a client charged and convicted in a drug conspiracy of a relatively small amount of drugs actually found on him.  But then witness after witness comes into court for sentencing and talks about all the times they've seen my client possess drugs.  No one seems to have a problem with that "relevant conduct."  Why shouldn't it cut both ways?

Now, honestly, I don't know if these officers are so naive as to think they can just scroll through their little pull-down menu searching for any and all crimes to cite, or they are just not bright enough to figure things out on their own.  And I hate to give them the benefit of the doubt, but I guess I will.  I mean the world is full of morons.

But you made a mistake, guys.  It's not like you shot a guy who was pulling out a cell phone, or conducted a no-knock on the wrong house causing the elderly owner to have a heart attack, or anything crazy like that.  But you screwed up.  

To honestly argue that you shouldn't be punished is inane.  By the way, that's English for stupid.

But what the hell do I know?

Is this bad?

I'm just thinking out loud here, (ok, typing, but whatever) but does the word "reprehensible" seem like a good campaign slogan?   

Every now and then, what happens in state court comes back up in federal court.  It almost never, ever, never, ever, never involves a federal judge reviewing the conduct of a state court judge.  Of course, until it does.  

Imagine this scenario.  A state court judge conducts his/ her business as usual, and mystifyingly sentences someone to, say 15 years in prison for failing to report on time to her probation officer.  Then, the defendant brings her 2254 claim into federal court alleging ineffective assistance of counsel.  With me so far?

During the hearing, not only does the appointed-for-life federal judge decide the defense attorney was indeed ineffective, but also has a few choice words for the state court judge.  One of those words, by the way, is "reprehensible." 

By itself, it's maybe a Lifetime movie.  Maybe.  More like a really bad WB tv show.  But now, let's add the back story.  

The federal judge is, as far as I am aware, the only district judge in the history of the Fifth Circuit to have ever been "sent to the showers", so to speak, by the Fifth Circuit itself for, um, not doing things the right way.  More interesting?  Maybe a straight-to-DVD release?

Now let's add this.  The state court judge?  Let's say he/ she resigned the bench to take a job in the D.A.'s office in preparation for his/ her run as the heir apparent to replace the long-serving D.A.  Now we're in at least Gigli land, right?

Let's add that the state judge is bypassed by the governor for the appointment to fill the vacant D.A.'s spot, and thus leaving the race wide open in what will surely be the hottest local election around.  

Would it be a disaster for the record of that 2254 hearing to be made public in which a federal judge describes the state court judge's conduct as "reprehensible" before the state court judge makes a run for the highest law enforcement position in the third most populated county in the State of Texas, and the 18th most populated in the country?  

I don't know.  Some might say it was reprehensible for it not to come out.  

But what the hell do I know?

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.

I think my Google is broken

My apologies to Judge Salvant for stating that he had no website. It didn't take a reader long to point out that the judge does in fact have a website for his reelection to the bench of Criminal District Court Number 2.

The website is here.

I know I stated that when I Googled the judge, and Ms. Tolbert for that matter, that I found no website for them. The same is still true. Sort of. Sometimes it pops up, and sometimes it doesn't. Again, my aplogies.

You will find all the information you might need (I suppose) on his website.

And yes, before anyone points it out, that is a sharp bowtie.

Now Hiring: Judge Criminal District Court Number Two of Tarrant County

There is only one contested criminal court judicial race this year in Tarrant County. That race is for judge of Criminal District Court Number Two. Republican incumbent Judge Wayne Salvant faces Democratic challenger Maureen Tolbert.

First, why are Tarrant County’s judicial races predominantly set in off-year elections? If there is anyone that can explain this to me, I would love to hear. But that’s another story for another day.

If you are a regular, everyday person in Tarrant County, you might not even know that there is a judicial race this year. I travel an average of 45 miles a day commuting from my downtown office to my house. I see two signs regarding this race. Two. They are both Judge Salvant’s.

We are only 39 days from the election. Granted, there are probably more important issues to be decided by your ballot on November 4 than a local felony court race, but could someone campaign?

Some will argue that Judge Salvant needn’t campaign as much because, after all, he is the incumbent. I agree with that to an extent. But, how about this wrinkle? Judge Salvant is one of only two African American judges in all of Tarrant County. He is also a Republican.

From my understanding, there is genuine concern (although I think unnecessarily) that an ironic twist could occur; one of only two African American judges could lose his seat because of a groundswell of African American votes going for Senator Obama in the presidential election.

The concern that I have heard of is that African Americans will be voting straight-ticket and will potentially “take away” votes from Judge Salvant. I don’t see that happening. Even assuming every Democrat and African American in Tarrant County votes straight-ticket, and in turn for Ms. Tolbert, is it really enough? Based on the numbers I’ve seen, Republican out number Democrats in the county by almost two-to-one.

But again I ask, where is the campaign? It’s great that a candidate might speak to the local party meeting, but those people are going to vote anyway. What about the others?

If I had to guess, I would think the candidates are looking to simply ride the coattails of the presidential candidates. It’s worked before. Well, actually it usually works.

But wouldn’t you like to know where the candidates stand on the important issues of being a judge in Tarrant County? Yeah, me too. With that in mind, I went Googleing.

Neither candidate has a website that I could find. In fact, I didn’t see anything designed for support for Judge Salvant. Ms. Tolbert apparently has a sister with a MySpace page and four snippets of a radio interview on YouTube.

Ms. Tolbert discusses how she is different in this interview. (Short version is that she is a Democrat and that because every judge is Republican, there is corruption.) Here, she discusses how it is bad that all the judges are Republican. Here, Ms. Tolbert discusses how a judge should be disinterested in the outcome of a case and should be more like a referree. (Interesting that she even mentions Dallas County.) Finally, here Ms. Tolbert discusses attorneys being pressured to dispose of a case. (I found this to be so interesting that I might post about this one later.)

So, is there an important judicial race this year in Tarrant County? Yeah, there is. Maybe someone could tell the candidates.

Rocking the Mag Court

The Magistrate's Court. It's in the basement of the Tarrant County Justice Center. It's not a real court (I don't mean that in a bad way). It's the place where felony cases go typically before they have been indicted for the purposes of determining whether a defendant has an attorney or if she qualifies for a court appointed attorney and to handle quick pleas. Some attorneys flourish there. It's possible to go into Mag Court and get appointed several cases and quickly get them pled out and make a quick thousand bucks. Some attorneys, however, don't do as well. Guess the group to which I belong.

I don't like Mag Court. I never had. It seems like the most unholy of dockets. If I've previously been appointed to a felony case, I will generally meet with my new client while she is still in jail. If she remains in jail, however, for whatever reason, the case is set in Mag Court. Typically, the case has not been indicted. But there I am, being asked whether I want to plead a case out pre-indictment for no reason other than the convenience of the system. At least that's how I perceive it.

Typically, I've already determined the best path on which to take a given case prior to ever showing up in the judicial purgatory of Mag Court, so it turns out being more of an extra stop in the journey. The problem comes when my name is called.

You see, there are three Magistrates in Tarrant County. At least that's what I've been told. I've only seen one. Judge Grant. He's a nice judge. I like him. But what typically happens is that while I am trying as quickly as possible to get in and out of purgatory, often times I hear Judge Grant call my name. "Mr. Matlock, do you have some time to handle a few cases for me?" Certainly, judge.

Don't get me wrong. I am certainly happy to take on whatever court appointment cases a judge would like to throw my way (especially since I just moved into a new office and I need to pay the excessive rent). But there are some attorneys that can walk into the holdover in Mag Court and get a defendant with whom they have met merely minutes before to take a deal that day and be done with their case. Apparently, I am not one of them.

As my good friend Roderick White says, I'm no Mag Court lawyer. I don't move cases. This came up today in District Court.

Several months ago, I was appointed to a woman's case in Mag Court. It was a simple theft case with multiple priors, to the point that she is now facing a second degree felony. She didn't like me from the start. She didn't listen to anything I told her, and repeatedly told me she would simply bond out and get a "free world attorney." Fine by me.

But, as my luck dictates, she never bonded out. She never hired that attorney. I would visit her and tell her the status of her case, the options available, and the likelihood of winning at trial. She didn't want to listen to me. I didn't know what I was talking about. (As an aside, I will happily admit this is not the first time a woman has made these remarks to me, if it will eliminate the need for my loyal readers to make this point.)

So this case has now dragged on to the point that it came up today on the trial docket. Granted, the likelihood of this case being reached for trial was slim to now (I hope this continues through the week, as well.) The problem came to a head when I showed up only to be questioned as to my sanity (again, not the first time) as to why I have this case set for trial. I really had no real answer.

Where the case goes from here, I have no idea. My client has bonded out. She might well be in the process of hiring that "free world attorney." If this magical lawyer can get her a better deal than I got for her, more power to him. I don't think it will happen.

But as I sat in court this morning, speaking with multiple prosecutors, it became clear. As the chief prosecutor of the court asked me why I had the case on the contest docket, I began to explain the story of this case. He cut me off and asked me a simple question. "Appointed or retained?"

"Appointed." He looked at me and asked where. Perhaps my face showed more than I thought, but he suddenly began laughing. I'm no Mag Court lawyer.

Where does the time go?

Being in trial can be tough sometimes. Just being out of the office for a couple of days while things pile up can cause for long working weekends. Make that trial a federal drug conspiracy involving international drug smugglers with multiple defendants, and you have the making of a long week.

Such was the case for this past week. For anyone who has not tried such a case, I highly recommend it. It puts all of your other cases into perspective.

Needless to say, we did not come out with a not guilty. However, a co-defendant represented by my good friend, local defense attorney Roderick White, was acquitted.

Now that the case is over, at least for now, I can get back to the important things. Like this blog!

Sharks - Getting value in poker and litigation

Knowing how to value your cards, and perhaps more importantly, your opponent's is a basic core concept of poker. The first lesson of poker is to reduce betting on bad hands while recognizing good ones. The same is true in court. If you know how to value your case, not only as a whole, but in piecemeal, you can strategize accordingly.

In poker, the terms of "pot odds" and "expected value" are used to determine the relationship between risk and gain. There are three things to consider here: the amount of the raise or call, the likelihood of success, and the size of the pot. The same concept applies to litigation.

The poker analysis is perhaps best analogized as follows: the amount of the raise/ call (or what you are willing to "give up" to stay in the hand) is the offer to settle. Consider the situation of a first time DWI case. In Tarrant County anyway, there is a standard D.A. offer on first-time DWIs. However, for the most part, a defendant who goes to trial and loses, does not generally receive a stiffer punishment than what she might have otherwise received by pleading guilty. Therefore, in that scenario, the raise/ call is little indeed.

The likelihood of success is essentially the same in litigation as it is in poker. Can I win this hand/ case? Of course, wins and losses are relative, and we will discuss that later, but essentially it can come down to this from the defense perspective; can I beat the government's offer? Remember, the relativity of the win can mean a 20 year sentence is a win, whereas a 6 month sentence is a huge loss. But winning and losing are the same, whether in poker or litigation.

Finally, the size of the pot. These are the stakes of the game, and they are different for every person and every case. Two DWI cases rarely have the same pot. Indeed, two murder cases never have the same size pot. What a person can win however, is not merely the opposite of what the person can lose. Remember, what a person can, or is willing to lose, is his raise/ call amount. It's what he is willing to put on the line for the chance to win. They are not converse ideas, and should never be thought of as such.

Consider the example of the drug dealer caught up in a large federal investigation. He has a relatively minor role in the overall criminal action, but is indicted nonetheless. With mandatory minimums for drug offenses, there is already a relatively large call to make to stay in the pot and go to trial. Given the concept of acceptance of responsibility and the carrot that is substantial assistance for cooperating snitching to the government, a person can conceivably be giving up a large sentence reduction by pressing his luck at trial.

For a normal first time felony offender in federal court, the temptation to fold is overwhelming. After all, the price of calling by pleading not guilty and going to trial often times outweighs the benefit, or the pot. It is not uncommon for a person to be able to cut his sentence by almost half by agreeing to plead guilty and cooperate snitch for the government. However, by doing so, they have folded their hand and have no shot at the pot, which in this case, contains an acquittal.

But consider the addition of the following variables. The person is in federal court for the first time, but has a lengthy felony criminal history, and is in fact, serving time in state prison for another drug offense. Under the relevant conduct provisions of federal sentencing law, all of the person's past criminal history will be used to sentence him, often harshly. For that person, the raise/ call is relatively small in consideration of the pot size.

Whereas the first person might have been looking at 10-12 years by going to trial, but was able to plead his case and receive six or seven years, those stakes are not those of the second person. With his criminal history, he is looking at a potential mandatory 360 months by going to trial, but 240 months by not. While the 10 year difference might be daunting to the first time offender, for someone in the second example, it is something they are willing to risk for the prospect of the pot, which still contains an acquittal.

Knowing how to value a case is extremely important in proper representation. Always calling a bet is the equivalent to always going to trial no matter what. Sure it might be fun, "betting for action" as they say in poker, but in the end, you bleed chips and your client is the one that pays.

Tattooed

Yesterday in the 213th District Court, Phyllis Dawn Harvey, known as the "Tattoo Bandit" got tattooed by a Tarrant County jury for her 12 day crime spree last July and into August. The spree began July 21 with a carjacking in Euless, and continued with robberies in Arlington, Bedford, Euless, Fort Worth, Grapevine, Hurst, North Richland Hills and Richland Hills. Generally, all of her victims were women.

According to prosecutors, Ms. Harvey would use a ruse of asking for change or attempting to buy a lottery ticket to get her victims to lower their guard. According to Ms. Harvey, her crimes were simply a means to feed her drug habit.

The jury apparently felt little compassion for the Bandit, and sentenced her to 18 life sentences as well as a 75 year sentence. That's not good for the Bandit. A life sentence of course means the person would have to serve at least 30 years before they are eligible for parole. So Ms. Harvey has that to look forward to, right?

Well, maybe not. You see, the Bandit was on parole after serving about 10 years of a 30 years sentence for a 1992 shoplifting (of steaks for crying out loud!) and subsequent carjacking. As a result, she must complete her first sentence, the remaining 20 years, before she will even begin her 18 life sentences. Ouch.

Ms. Harvey was dubbed the "Tattoo Bandit" because of a distinctive rosary tattoo on her wrist that had been detailed by many of her victims. Police recognized the tattoo on Harvey and arrested her during a routine traffic stop.

Defense attorney Lex Johnston planned to appeal.

Striking the religious

Every now and then, I feel the need to read. I don't just mean my subscription of ESPN the Magazine, but I mean, you know, the law. And stuff. So last week I'm doing my normal trial prep which typically involves trying to think of all the conceivable crazy things that might happen. It's what I do. Leave me alone.

One of the things I began thinking about was general jury selection. I will admit that for whatever reason I consider jury selection to be by far my weakest area of being a trial lawyer. I say that knowing I have had several judges tell me that they were impressed with my voir dire. I always think I leave something out or miss the chance to make this point or don't hammer home something. I don't know why.

So as I started looking at various things that might come up with my particular case's jury selection, I began to wonder about the juror who says he can't sit in judgment of another person. That got me thinking. Don't I want that person as a juror? Wouldn't I want someone on the jury who has a religious/ moral belief that prevents them from judging my client? Um, I'm going to go with yes. Actually, hell yes.

I began doing a modicum of legal research. I know, we all hate that, but as it turns out it turns out to be one of the five things in life that I tend to be pretty damn good at. Now I will admit, perhaps I should have my Texas driver's license revoked or something because I have never sat down and actually read all of the Texas Constitution. I know. But in my defense, it is something like 752 pages long. I mean, seriously!

So as I perused the constitution of the Lone Star State, I ran across Article 1, Sections 4 and 6. It would appear to me as I read these two sections that it is improper to excuse a juror who has religious beliefs that would prevent them from sitting in judgment.

Now, as a good little Sunday School kid (my mother is so proud), without looking this up, I think it is the passage in Matthew 7 that says something like "Judge not, lest you be judged." As I read these sections, I think excusing a juror for religious belief just ai'nt right.

Article 4 says that you can't use a religious test for holding either an office or "position of trust." It would seem a juror in a criminal case would be a position trust. Article 6 is the preference clause. It prevents the State from showing preference toward any religion. Wouldn't it be the case that excusing a juror because his religion prevents him from sitting in judgment as a juror, but not excusing another juror whose religion allows the service be showing a preference toward a particular religion.

I will admit that I have not done the research on this issue. I'm just curious. But what the hell do I know?