All Posts By

Francisco Hernandez

Non Disclosure for DWI Driving While Intoxicated Charges

By | Criminal, Driving While Intoxicated, Immigration

The Texas State Legislature in its 85th Session passed a law to take effect in September 2017. Any person who has been convicted of DWI (1st time) where there were no accidents or injuries will be permitted to file for a non-disclosure. There is a 2 year waiting period and the BAC must have been less than .15.

A non-disclosure is a petition that is filed with the Court which permits a person to seal records (from the Public) of an arrest and accompanying Court documents. The Federal government will still be able to see the records.

A gripping biographical essay by a prisoner friend

By | Criminal, Immigration

I could start this story in so many different places that the Hollywood hautte coutre would have a field day with it. But whenever my mind runs over my “prison story”, it always starts in the same place. It’s not, as would make sense to most, my first day “in the slammer” when the big steel door slams behind you like you always see in the movies. No, for me, my first day al¬ways begins with my last day in Tarrant County jail.

For the uninitiated (and I pray to God you spend your whole life UNinitiated, dear reader), if you ever have to go to prison in Texas, your first stop after the judge bangs the gave is a holding cell behind the court room. Your journey from there leads to the county jail, and after spending around 45 days there (the maximum allowed by law), you’ll be transported to the Texas De¬partment of Criminal Justice. That day, for me, came on December 1, 2005.
Acclimating to county jail had been fairly easy, what with the visits from friends and family every week day and the comforting thought that just on the other side of the walls and bars were the familiar sights and sounds of the city I had called home for nearly a decade after relocating from Odessa, my hometown whose only redeeming qualities are the historied football program at Permian High School and the most congenial gathering of good people ever to grace the desert.

But opportunity had drawn me to Fort Worth, and I’d been busy building my life. I had good friends, a great job as a middle school teacher, fullfillment from my volunteer service in my church’s youth group, and many relatives close by including my mother and my brother’s family. And this was the day I’d be leaving all that behind, because, along with all that good stuff, I now had an ugly and social¬ly intolerable black mark next to my name– a conviction for aggravated sexual assault of a child. There’s just no right way way to say something like that, is there? You see, when every¬one’s favorite teacher and church-youth-volunteer-worker-guy decides to pursue sex with one of his 12-year old students, that’s just bad, and the Texas courts definitely frown on it. So the day I was waiting to be transported to the TDCJ, I was being held in a “tank” with a bunch of other perverts, and some of them were certainly perverting. My first day “in prison” always begins with the thought of those three street hoods stan¬ding at the large front window of the tank “killing” on the “last bitches we’re gonna’ be seeing for awhile”. Translated into our language, that means the prisoners in the window were mas¬turbating while watching, and in full view of, the females who worked on the other side of the glass. These women might have been your daughters or your sisters, maybe your wives. And several of them wore badges. Yet, nothing happened to the “jack-monsters” in the window.

Now, I’ve seen the same movies you’ve seen, read the same books you’ve read; and I freely admit that, given the way I went off the rails, I’ve probably even seen real perverted stuff that will never come before your eyes. And none of that, not even the stories I heard in group at sex-offender treatment program, prepared me for seeing this display of animalistic behavior. I mean, it was like the dog humping a tree or something. My world was divided in two by that sight. Out there, beyond those walls, was a place were it wasn’t okay to stand in a window and mastur¬bate while watching the passers-by. Nope, you’d be arrested and put in a place where all of a sudden, it WAS okay- where the very law-women who should be arresting you were now the objects of the assault and did nothing about it, where all chivalry was dead because the men on the other side of the glass were just as aware and just as passive. Don’t get me wrong. I’m not trying to be sanctimonious here. In the scales, I’m sure any sane person would weigh child molestation as more despicable than public masturbation, and I’m right there with you. But even as I commit¬ted my crime there was no doubt in my mind that it was WRONG and it should be stopped. (It’s one of the reasons I turned myself in to the police when one of my roommates became suspicious of what had happened.) Well, this vulgarity was no less wrong, and, might I add, being done right in the middle of the Tarrant County Crimi¬nal Justice Center, and nothing was happening to stop it. And that blew my mind.

There’s a moment, I believe, in the mind of every prisoner. It’s a moment when he realizes, “Oh my God! I REALLY am going to be in jail for X number of years of my life.” This was that moment for me, and the first inkling I had that maybe there wouldn’t be much justice in the Texas Department of Criminal Justice.
* * *

If you come to the TDCJ from in-state, you come by Bluebird. That’s the name of the bus company that manufactures the medieval instruments of torture that transport you to prison in Texas. From the outside, it looks like a big, white schoolbus– all clean and shiny. The only tell that it holds a bunch of felons on their way to the joint are the plates of stainless steel with little peepholes drilled in them so the cons can see out. You’re handcuffed to somebody that weighs at least 50 pounds more than you do, and he stinks because, like you, he hasn’t showered in awhile. The interior also resembles a schoolbus, at least in that it is designed to seat people that are no more than four feet high and weigh less than 100 pounds. I am not exagerating. The seats are hard plastic, like a city bus, but the last time I had to “catch chain” (the prison slang for taking a ride on the bus), the seat I ended up in was only eight inches from the back of the seat in front. Of course, if you’re on the outside seat, there are things you can do to compensate, but remember, you’re the little guy cuffed to the big guy, so chances are you’re stuck on the inside.

The morning I caught chain out of Tarrant County, there was snow on the ground and the temperature hovered in the high 20’s. “Hurry up and wait” is the mantra of the TDCJ, and for reasons I’ll never understand, prison officials are very eager to make sure you’re ready to go on the bus even at four in the morning. That’s at least two to three hours earlier than necessary, but I’ve never seen it played out different and I’ve been on a lot of chain, so it’s gospel. You better get ready for it if you come to prison.

After I’d been stuck in the tank with the jack-monsters for over two hours, they herded us out into a hallway where we were stripped down to the bare skin and given a jumper. It was white and snapped up the front. It also had more holes than swiss cheese, and since underwear wasn’t part of the package deal what little modesty and dignity I was clinging to went right out the window.

So, we are run in a line out to the “sally port”, which, in the case of Tarrant County, was a big garage under the downtown jail. The concrete was frosty cold on my bare feet, but, oh, how I’d long for that precious warmth in a couple of hours. The guy I was chained to made himself out to be some kind of expert at going on the chain bus. This was one of the best learning experiences I’ve ever had in life, and I hope you will listen to me now, so you won’t have to have the same experience. EVERYONE in prison claims to be an expert at EVERYTHING. They are not. Please…trust me. They have no idea what the hell they are talking about and the sooner you learn that, the better off you will be. By far and away, the most precious commodity in prison is the truth, and you gotta’ dig for it like golden nuggets. But I digress.

The big lug I was chained to said we ought to ‘hold back, because the “good” seats (that is, the seats that were the first in the row up front where no other seats could he installed eight inches in front of your own chair) would be the last filled. The guards, he said, would make everyone go to the back of the bus. I thought he might be on to something when I heard the officers barking orders to go to the back of the bus and fill up the empty seats, but standing, as I was, on the ground, I couldn’t see that most of the other guys on this chain really DID know what they were talking about (and they climbed on before us and utterly ignored the instructions the officers were barking out. They not only plopped down in the best seats, but more often than not they stretched out over whole benches. By the time my travel-mate and I made it on, there was one bench left–the one over the dreaded “hump”. You know the hump. It’s that seat we all avoided like the plague even when we were diminutive snots, because any idiot could see there was no leg room at all on the hump seat. And this was the worst example of said hump seat I’d ever seen. The bench literally looked like it was bolted to the top of the hump. The clearance for leg room was, I am not joking, the thickness of the bench pad.

Now, even for a lithe and flexible human being, this was untennable. I, most assuredly, am not a lithe or flexible human being. I’ve had five knee surgeries. Ninety degree bends make me happy and are usually doable if I’m properly medicated. Getting on that bus, I was anything BUT properly medicated. Not wanting to cause any ruckus, though, I took my place on the hump, because, my quickly adopted philosophy was that sore knees are better than black eyes. The interior cage was locked, the bus was started, and after a last seemingly meaningless wait of half an hour or so, the sally port’s overhead door trundled open, and we were on our way.

Did I mention there was snow on the ground and the temp¬erature was hovering in the 20’s? Before we’d even got to the city limit, my feet were popcicles. All the snow under the bus was getting thrown up into the wheel well by the rotating tires and turning the hump into a perfect torture device. I made it all the way to Weatherford, and was singing halleluhjahs when we pulled off the interstate. I was hoping that maybe some of these fellow travelers would be getting off at some prison unit I’d never known existed in our little neighborly town. Imagine my surprise when the bus pulls up in front of some Mom and Pop convenience store, and all but one of the officers gets off the bus to go get coffee and a breakfast snack. They must have been thoughtful and thrifty fellows, too, because to save taxpayer money, they made sure the bus wasn’t idling. Oh yeah, the heater was turned off, too. We spent about twenty minutes there, the inmates getting disgruntled while the officers got gruntled, and we were off on our way again.

I knew we were headed to Abilene, and I knew there was a lot of road ahead before any of this would stop, so I did my best to ignore the pain and discomfort and snooze. It was still morning when I saw the outskirts of our des¬tination. The Middleton Unit sits on the north side of town and 1-20 skirts the north side of Abilene, so we never really did get into town. We took a right and made a few turns and this little city inside a fence of cyclone and concertina wire suddenly appears. The guns were stowed in a special locker and the fences were opened to let us inside. We drove around to where they gassed up the bus. This was my first exposure to the prison labor system. There are still full service gas stations in this world, you just got to get put in prison to see them. An old black man with a cheshire cat grin got the diesel tanks topped off while we chattered anxiously about what awaited us in the blue steel buildings all around us. After the gas was done, the bus pulled up to an intake building. There was a sidewalk, but it was on the other side of the bus. So, barefoot, we got out and walked across a road covered with jagged rocks about the size of golf balls. This was an especially exquisite torture considering the semi-frozen state of our feet. It was at this moment that I began to suspect that these people knew exactly what they were up to and were making the most of it.

We finally all made it into the building, and as the door closed behind me, I realized for the first time that I was officially “in prison”. The prisoners from the bus were lined up in three rows which had been conveniently painted for us on the concrete floor. Then we were told to take off our jumpers and stand naked until the intake officers came around and gave us our first official TDCJ search. God has blessed me with many gifts, but movie-star good looks isn’t one of them. So, of all the scary scenarios I imagined facing when I came to prison after watching a lifetime of gangster and jailhouse movies, homo¬sexual predation was not one of them. Now here, on my first day inside– really my first hour, there was this big, ugly thug one row up and about three guys over who just kept looking back and staring at me while we were waiting for the searchers to do their thing. Thinking I’d learned something from all those movies, I thought I’d better make a first impression and make it fast, because other guys were starting to notice how this dude was staring and were watching for my reaction. I screwed up my courage as the adreneline started pumping to gear me up for what I sure hoped wotld NOT be my first fight in prison. “Look out, boy! You need a picture or what?!” His eyes narrowed at me calling him “boy”, and he did indeed look pissed off enough to fight, but the other guys around us were laughing at the joke, and the presence of the officers made him second guess any thoughts he had of coming at me, I guess, because he turned back around and faced the front.

Finally, there was an officer in front of me. Texas prison guards almost all wear grey uniforms, and so we called them grey-suits. He made me open my mouth. Since I was bald, he skipped the part about running my hands through my hair. He made me turn around, squat, and spread my butt-cheeks. He made me lift each foot one by one. He made me turn back around and lift my nut sack. I guess that he finally got satisfied that I really WAS naked as a jaybird, because he finally went on to the next man.

The searchers eventually finished up and we were lined up to step up to a counter and get a set of inmate uniforms which consisted of a white shirt, a white pair of pants with no fly or button (just an elastic waist-band), a pair of boxers so badly made that after a decade in prison I still wouldn’t find a pair that hung comfortably, a pair of grey wool socks, and a pair of Chinese-made “winos” that resem¬bled badly-made knock-offs of the Vans I wore during the 80’s when jams were popular. (Aren’t you glad THOSE went out of style! RIP.) Then we were herded into one of the three cages in no particular order that I could per¬ceive. One cage was already full, and the second was getting there when I was put inside. The homo-predator was still “mean-mugging” me, so I was relieved when the officer soon decided my cage was full and closed it up.

We waited in that cage for about an hour and some inmate laborers brought us “johnny-sacks”, which are brown paper bags with a couple of sandwiches and maybe some raisins or prunes. If I’d of known how many of those suckers I was going to see in my TDCJ stretch, I would have thrown it away right then, but as it was, I was hungry, and the bag had food in it, so okay. Another hour goes by, and things started moving pretty fast. First, we were told to take off the clothes we’d just received, and we were put through a shower and haircut. Then we received another pair of clothes. This was just the first of a million irksome instan¬ces of time and money wasting I’d see over my time. It constantly seemed as if the absolute least economical and most bothersome way of doing any particular thing was ALWAYS the way it was done in the TDCJ. You see, they have no incentive to care. It’s not their money. (It’s YOURS dear reader!) It’s not their wated time. (It’s YOURS, dear inmate!) The TDCJ is all the worst characteristics of big government– waste, corruption, lack of accountability– combined with all the despised features of mammoth corporations– intractability, lack of creativity, a burgeoning class of wishy-washy mid-management. As horrified as I was seeing first-hand how the taxes I’d been paying since the first time a bought a penny’s worth of gum at 7-Eleven were being sucked into the sewer when I first got locked up, it’s even worse now. I mean, no matter how low you try to set the bar of achievement for this institu¬tion, they always manage to tunnel under and find a record low.

Some of us, like me, were sat down on steel benches while others were called out and sent off to who knows where. The predator was one of these, and I never saw him again, for which I was grateful. We sat there for about three hours and were moved into a room where we were given two sheets that looked like they’d just been violently ripped off a mountain man’s cot by an angry bear and a blanket that had barely survived it’s encounter with a swarm of crazed, starving moths. If you held all three up at the same time together, there were still places you could poke your fingers through.

Once we had these items, we were led to our “pod”. This consisted of clover-leaf shaped building with three dormitories attached to a central picket where the electronic locks were activated for all the doors. We were assigned our bunks. I had seven “cellies” sharing my dorm, and there were several dorms in each pod with a central “dayroom” that had that luxury cable television you’ve probably heard the politi¬cians talking about. This was another harsh lesson in prison life- how seemingly good things could, if implemented properly, become a source of incredible tension, division and irritation. The TV was turned on every morning at 7 AM give or take 30 minutes. It was almost always set at its highest volume. Go ahead, reader, take a moment to turn up your TV to its highest volume. Not pleasant is it. Now do that every single day for a decade from 7 AM to 10 PM on weeknights and 1 AM on weekends. I soon learned how to sleep with plugs in my ears. These pods were also made with open-faced showers conveniently located just behind the TVs. No need for homo-predator to turn around now; he could just pretend like he was watching TV and get the show of his life.

I finally got my bed made up, learning for the first time in my coddled life how to turn a flat-sheet into something you could fit on a “matress”. I had a locker with nothing in it but the handbook we’d been given ear¬lier with our bedding. Apparently, several of my new cellies were not satisfied with the contents of their new storage area, because they kept on banging the metal doors closed again and again. I put my head back on the part of my matress the TDCJ laughingly calls a “pillow”, and drifted off to sleep wishing with all my might I could go back and make a different decision about sex with a student.

Getting From Internet to Evidence

By | Criminal, Immigration, SEO

There are all kinds of amazing things you can discover from someone’s laptop and if they are thinking about suing you. A lot of stuff is super useful. As you might guess the law has kind of responded to company’s effort to pry into people’s work computers and on occasions employers might get an overzealous and for example using a forensic experts to fish out the Google password you used to get into your private web based email. Go through it and find out about communications with your attorneys and use those to kill your case.

How many of you as a matter of fact will Google the responsible party in litigation? Right okay. Related question; how many of you as a matter of course and I don’t care if you use Bing or some or some other tool you use, how many of you as a matter of course search Google for your own client? So if you are searching the one you really ought to be searching the other and by the way if you are not searching either, you should totally start. Like you really need to use the tool that is known as “The Internet” to figure out everything you can about both your opponent and your own client early on.
There are actually a couple of ethics opinions out there. And from the other states, occasionally plaintiff’s lawyers have made a mistake of encouraging their clients to “clean up their Facebook posts”. Now do you know what I mean by that? Clean up your Facebook account means go back in and find those posts you made before you talked to me. Cause now I’m a savior and advised you to stop doing that. That are inconsistent with the narrative we would like to talk about. So if we need to present you as the American flag an apple pie and I’ve got a photograph of you on Facebook doing an inverted bear bong stand what you never seen this before actually a feet of gymnastic, actually very impressive. People should be more proud of them than they are. Are you doing this for inverted bear pong stand, that’s not going to play well, you need to get rid of that. Do you know what they call that? Spoliation, that is in fact called spoliation and for some reason it hasn’t fully clicked in the mind of the practitioner that the idea of running out and cleaning up the Facebook account isn’t the will full destruction of relevant evidence.

There is nothing special about it there is nothing unique about it, it is not like there is some law out there that says that social media is private. If you are not aware of how the Internet works, please understand the Internet is very public. What you put on the internet is you are saying everyone can see or 2000 of your closest friends that does not give rise to any expectation of anything other than everyone’s going to know it.

Computer Crimes Child Pornography Sentencing Guidelines

By | Criminal

Demystify the guidelines;

Quick example; Here is how the federal system started punishing for the number of images somebody has. This is representative Sensin Burner, Head of the House, Judicial Committee. He had somebody working for him. Alright now this person working for him had a pipelined introduced into any legislation he wanted. And Representative Sensin Burner is not a fan of judges and he is not a fan of the Defense Bar. But Jay Apperson did not go to him. He went to Representative Tom Feeny to propose that senate child pornography sentences should be jacked up. This is Tom Feeny. This is the picture he used to have on his own website as a Congressman.

Alright, now this is a cheerleader from the University of Central Florida. Why do I put this on the screen? Because at the time Jay Apperson went to Tom Feeny and said lets jack up child pornography and computer crimes sentences. The sum total of the representatives’ entire legislative history in congress was that he has introduced a measure to recognize the cheerleaders of the University of Central Florida alright. Now God bless the University of Central Florida cheerleaders but I don’t think that’s a good indicator that the Representative was looking at this issue very deeply and he wants and he wasn’t. He later admitted, “no I’m not on the judicial committee, I don’t know anything about this”.

This guy Apperson showed up and said – like literally wrote something on a napkin and said, “would you introduce this tomorrow as an addendum to the Amber alert bill” and so I did. That’s how we get higher sentences. Alright. That is the congressional findings that are driving sentences in the federal system and in the State system. Alright! And so we want to attack those sorts of things. You don’t have to do this. Here is what you do. You go to I have got 2 articles on this and a bunch of samp — different types of sample sentencing memos. You cut and you paste. Alright, that’s it. That’s all you need to do.

Alright, so the judges, after I wrote this article in 2008, it circulated really fast and they started discussing it. And it made its way. It peculated up into case opinions in every circuit. Alright! And by the time they did a study on it a year later, it was with crack cocaine, which is now been legislatively changed. The number one issue where the judges said these sentences are just crazy. Alright, so now we are getting away from the judge happened to feel like he is a loner or being able to say judge thousands of other judges have this concern. Alright! So are we getting there. Are we getting any change? Well in the federal system we went from way low percentage now upto 58% of sentences below the guidelines. Now it’s even higher than that. They are saying it is 78.8% of the 2,000 plus cases that the sentencing commission examined last year. In some way, either they are plead bargaining or the judge fixing it. We’re below the recommended punishment range. Because the judges figured out this is nuts. Now, that’s not because judges are crazy whacko liberals who want to send everybody home with a pat on the back. They are varying less than 5% of the time on drug possession cases. Alright! So, we still have some judges out there who are going to say that’s great, the outlines just don’t make sense but he’s still a perv and pervs are going to prison in my court. So what do we do for those judges?

Okay! Alright. And now this is what the prosecutors do. They come in and are like no. I’m not saying he was going to molest somebody tonight. But did you look at the pictures. Okay. Let’s talk. I mean, I can’t say for certain he was going to take the next step. But Judge. Alright, so how do we fight that? Well the big tool in the prosecutors tool belt is this stupid thing called the Butner Redux study. Alright. They went in and got some offenders in federal prison on child pornography offenses and according to the study author, they started off with 54 inmates who reported 53 physical contacts. And by the end of the study, they had 131 inmates who had reported 1477 contact offenses involving children. Implication, if you catch somebody for child porn, it’s really AL Capone. Get him for what you can get him for and punish him for what you really know what they did. Now, here is the problem. If I want to get published in the Springer Journal of Family Violence, all I got to do is pay them $3k, $5k if I want, $4500 if I want color tables. Okay!

There was no pure review of any kind. And I have talked to people who went to this study. Now, they had $13k inmates who could have qualified at the time in the federal system. Ahmm and they chose these 131 and how did they do it. Well let’s pretend, for those of you who are experienced with the department of corrections or the bureau of prisons or something, this is a big pretend. Let’s pretend the wardens used common sense. Okay. Now are they going to send the worst offenders who are there for life? No. Are they going to send their child pornography defendants who are run of the mill?

No. You’re going to send the guy who has all sets of red flags but you can’t quite find a way to keep him in prison. Those people go off to Butler, North Carolina and they get together in it, “oh its reunion”. I’m here for child pornography, you’re here for child… so comfortable. I’m welcome here I’m not an alien to everyone here around me anymore. And then they have little meetings. And in order to stay in the program, you had to give fresh disclosures each week. But they were none binding. You didn’t have to give any factual detail. And it couldn’t be used against you. So let me.. I have a choice — okay. I can disclose something new this week or not — I can say, “well I haven’t done anything else” and you will send me back to terror hold Indiana where the guards will let everybody know that I flunked out of the sex offender treatment program. Alright! I’m Sorry. There was another one that happened a long time ago…I don’t want to talk about it because I have my cookie now. Okay like. That’s the level of science here.

Alright and so they came out with this study and they circulated it to judges all over the country, and we only found out about it because some Judge told the defender but they sent it to all the judges privately. And then they weren’t introducing it into cases they didn’t need to, the judge already has this background knowledge about how sex offenders are! Alright! So you want to figure out what your judge knows. Alright! But the United States sentencing commission and a bunch of experts have come back and said this is all hokey. Well sentencing commission hasn’t completely said it’s hokey, they’ve said, certain experts say this is hokey. Now here’s why you care about the federal system for those of you who aren’t in it.

The sentencing commission just came out with a… I think it’s a 390 pages plus appendixes report on child pornography offenses. Because I wrote my article in 2008, a bunch of judges wrote repenions. The sentencing commission had to respond. The variance rate spiked and all of a sudden they were looking bad. And they were trying to defend their funding because the sentencing commission is under scrutiny. So they come out with this massive report saying, “Hey congress, please let us change the guidelines”. Here’s where we are with the science and what they’re doing is a grand study of like 2,500 child pornography cases, and then they’re going to give all the statistics of what they think it shows to congress. Congress will make factual findings on that and that will lock you in regardless of whether you’re in a federal case. So, what are they saying? Well they are saying social science research has not established that viewing child pornography causes offender — offenders to progress to other sex offending. Now I’ll tell you something here, this is very much a double edge sword. Study after study has actually shown that when pornography is available, people commit fewer assaults.

Sex assaults, rapes everything else. This is totally countered to what people expected. As different Countries came online with pornography, Denmark, Holland, The United States, they expected the amount of rapes to rise and it went down okay! Now the reason that’s a double edged sword is because that means that the prosecutor could say, “Well you could take away his child porn, he’ll go to the real thing”. Right? So I’m just telling you, be careful with the studies but you need to be aware of them. There is at least good studies that say, it doesn’t cause you to move on to these other actions. What else? Recidivism. Everybody just knows these guys just can’t be cured. Right? Now I’ll be honest. I’m happily married. My wife is beautiful woman. But, if suddenly if all you nut jobs came back and changed the rules of the United States and made it punishable by a term in prison for me to be attracted to my wife, I’d say whatever you wanted me to say. Dogs? oh yeah habba habba. I mean like oh. Whatever I got to say to not got to prison right? It’s not going to change my underlying attraction to my wife.

But, if I knew I could go to prison for 20 years for touching my wife, I might be very careful about having any physical contact with my wife as much as I love her and I’m attracted to her. The same thing is true with these offenders with their findings actually child pornography offenders, tend to be remarkably compliant on supervision. Very few problems. Very low recidivism right of any kind. Let alone of sexual offenses and even when it is a sex offender recidivism a lot of times it’s just looking at more pictures. By the way I want to go back to that Butner study for second. Remember how I told you it was all these contact offenses. If a guy looked at a picture of child pornography and masturbated, that was a contact offense because he was having physical contact with himself sexually, in regards to the idea of being with a child. Alright? So we got to be very careful about definitions in these cases.

Alright. Here’s some other great findings for us. Peer. Who knows what peer to peer networks are? Alright? This is how everybody gets child pornography these days. Hey you go online and you download a song. You go online to download a movie. If you don’t, your kids do. Alright? Or their kids do. And it’s free and the descriptions are only accurate about half the time. And what a lot of people do they is they just grab 50 files and hit download and whichever one downloads first, that’s the one they masturbate to! Okay! And the others are there in their files, they haven’t even opened them. And when you sit down with your friends and examine and you’ll see that’s frequently true. They haven’t even looked at some of the files that they are downloading or they have downloaded. Here’s the thing! As they are downloading a file, the default setting now on all the file sharing software that is commonly used, is to seed or re-distribute those little packets they’ve got. So they’ve got only 3% of this file they of 5 year old that daddy, downloaded that they think is named you know XXX hardcore porn but somebody else is already downloading for or getting from them that little 3%. So, not only they are a possessor and a receiver, they’re also a distributor alright. And what’s really perverse is that if I type something on the air.

Let’s say I wanted to look at child pornography and I type on the internet, does anybody know where to get child pornography? And I get some. The government can charge me with possession up to 10 years, they can charge me with receipt 5 to 20, they can charge me with distribution 5 to 20 but has a higher punishment advised or they can charge me with posting and advertisement soliciting child pornography 15 to 30. Okay. That’s a lot of strength and power in the prosecutor’s hands. But the sentencing commission says, “no no this is actually normal now. Not unusual behavior”. And if you check out the second article I put out last year, I’ll give you all sorts of statistics and science or what they say.. actually you know what?, ”we fully expect now everybody’s going to have a picture of somebody under 12 and a picture with bondage and a picture with all these other things that are supposed to prove that they are the worst of the worst”. As the Judge observed in the Grober case in New Jersey, it’s a peculiar way to me that in over a 100 child pornography cases the FBI describes every single offender as the worst I have ever seen. Alright, and I worked with Ken Lanning who is a profiler for the FBI.

He’s retired he is now on private practice and will gladly charge you $30k to come work on your case. Okay. Now what Ken Lanning says, — Who here has heard like this problem gets worse every year? The images are younger and more violent than ever. Who has heard this? Okay! He heard that for the first time in 1974. I saw images of infants in the 1990s. Let me assure you, it’s not getting any more violent or young than a 3yr old being raped to death. So that’s a lie. And the sentencing commission can help you debunk that. So what’s the real science? This is the hostel and saws example they go through and they say look. Generally, what generally the client your getting is the low hanging fruit. Easy to discover on the — literally the detective gets on and goes, child pornography or twink or little Lolita or something like that and sees the people sharing those files, looks at one, yep that’s child porn. Looks at their I.P address, goes and gets his subpoena and next afternoon they go to the guys house and he confesses. That’s how tough these crimes are.

And it gets some nice bucks from Washington to feed and fund their local police departments. Alright! But this real science is saying hey these guys are not the problem, lots of people look without acting. Alright! and there is all sorts of studies on how all this works. The bottom line is, if you get one of these cases, look into it. Alright.

And now we want to provide them, the judge the principle. We say, judge, the guidelines are crazy, the science we can’t hide all these congressional findings is totally bogus, use the computer example, about only criminals being on the internet secret technology. Even judges are in on the internet okay? And these common assumptions are not backed by science – science says the opposite. So what sentence should you give my client?

This is this is what it’s your job to show the judge.. It’s like this this little tiny sliver of their life doesn’t prove what they’re like. Case in point, another case I had last — 3 years ago now. I’m told I’m on a child pornography. I’m told on a Friday afternoon at 4 o’clock. We’ve just chosen a couple of pictures — sample pictures to show the judge on Monday at 8:00AM. Surprise – surprise!, I can tell by looking at the desk, by just looking at the mega data, the disk had been burned 2 years earlier and they just chosen the night before to tell me. Oh why? I told my computer examiner – first thing Monday morning – go to the lab because you know they don’t give you a copy of this stuff – go to the lab – look at these pictures – in particular look at picture #6. This is bogus. There’s something about this that rubs me wrong. So, we get in there and their person takes then says like, “here are sample representative photos, and they show the 5 first ones”. I mean because what am I going to do – stand up and say, but judge, look at these 2000 others – they are not nearly as bad right – I mean – like, I’m not going to do that. The judge will shoot me if I did.

And then the prosecutor says, “is there anything unusual about this final picture?” Yes!. The final picture is not.. is not child pornography. It’s a cute little girl 4 to 5 years old in her panties. Right? With a big smile on her face. And the prosecutor says “what’s special about this”? *sighs* it’s his daughter. Implication — Next step, Right? So my investigator came in – it’s just like my cousin Vinny. He comes into the court room, I give him the like – save me! – he gives me the nod. I put him up on the stand I said, “is there anything unusual about picture #6 to you?” He goes like sure is. He says “this is one of a collection of 50 pictures that was taken on that daughter’s first day as she prepared to go to kindergarten for the first time. And those pictures were taken 3 weeks after our client was arrested and put in jail by the government. And they were taken by the mom and they are part of a whole collection of photographing and documenting that first day at school. Alright! They were getting sneaky on us. Alright?

So, how are we going to set our starting point? We’ll set our starting point by talking about what our client really did. Not what we’re scared what he would do? Like what and in what other system do we do this. We do it with child pornography.. alright! I know nobody here has smoked a joint, but, probably one or two have a friend who has smoked a joint in their lives. And if you could go back and collect the evidence of every joint that friend has smoked since 1972, it would make them look like a pretty substantial marijuana distributor. The same this is true here.

Alright? So let’s…let’s get a good comparison. Now I’m a parent of 4 little girls — I’m going to give you 2 defendants. Defendant #1 sits in his basement, sweaty and feisty and drinking his mountain dew and watching his porn 6 hours a day and he looks at pictures of little girls. Does he concern me? Well yeah—ofcourse—I’m a parent of 4 little girls – he concerns me. The other guy gets in a car in New York to come meet a girl in San Antonio, who he’s persuaded that they ought to have a relationship with. Now they are different physical ages but look, in his defense, they are the same soul age.

Okay! Alright! So he’s coming down here to meet up with her for sex and he has – you know like – some flowers and a box of condoms and he gets the texts and he goes hmm hmm what am I doing with the flowers? Wrong demography! He throws them out of the window and gets a happy meal from McDonalds – and he goes on to meet the girl, and they catch him in the driveway, dateline style. Who’s a bigger worry to me? The guy who looked at the pictures or the guy who’s going to actually molest my kid? Alright! Well the molester. So let’s look at his sentence of the molesters going to get 10 years then my clients got to get a lot less than that or if the prosecutor’s whole general deterrence theory is going to be believed, then what will the message of general deterrence be would be don’t look at pictures, go molest. Right? Because that gets you less time. Alright! So let’s do that comparison. What next? let’s put them on the spectrum. Let’s talk about our guys. Most systems treat one picture of bondage to the same way as 50 thousand pictures of bondage. Let’s look at context okay. You client had a 1,000 pictures of child pornography but he had 473k pictures of voluptuous brunettes between the ages of 20 and 50 alright? Is this guy much of a worry? Probably not — Let’s talk about the download spectrum. Everybody talks about the market for child pornography. Alright! you’re going to love this! Can anybody throw out a number?.. how much money you think is made worldwide in the child pornography market each year?

It might be as much as 20 billion. Alright? This is what the department of justice is saying for years. Where did they get that figure? Nobody knows. Apparently they said, well maybe as much as 10% of the population looks at this stuff and they were each willing to pay $19.95 a month. It would add up this way. Here’s what I know. The worldwide market for child pornography is valued higher than Hollywood’s profit per year internationally for all the movies, DVDs and blue rays they sell and show in theatres. I’m guessing Hollywood’s more profitable, alright. So it’s all hokey. And the other thing is the market idea fails anyway. I went to George Town. I was an idiot. I overpaid for my education. Okay? and I had to take 8 semesters of economics. And we talked about supply and demand and everything. One of the things is, as a supplier, I don’t fulfill your demand unless I know of your demand.

So, if I sneak in the library in the middle of the night because I’m – I live in Jefferson City Missouri, a small town. And I sneak in the library because the windows open and I crawl and I pull up a Steven King book off the shelf and I’m like it —wooh this is kind of scary – this is kind of scary – and then I get to the end and I’m like – an alien spider? That’s lame. And I put it back on the bookshelf and leave. Have I done anything to influence Steven King to make more books? No. He hasn’t gotten royalties. He hasn’t gotten profit. He hasn’t gotten the little egotistical buzz of having me being a fan of his – of his material. The library doesn’t know to get any more books. As far as they know. Nobody reads that book, okay! It’s the same thing is true on peer to peer networks. Generally, if somebody takes something of a peer to peer network, nobody else will know it was taken. Right? It doesn’t require any production to reproduce it. So it does nothing to impact the world market for child pornography. So defuse that argument. And then we discuss personal variances. I have a sample sentencing memo for every single one of these scenarios.

Somebody who is old–somebody who is young, somebody who is sophisticated somebody who is not sophisticated. Somebody who is going to get his ass whooped in prison. Somebody who is going to get raped in prison, somebody who was victimized, as a child, all of those things come to me – I have a sample memo for you. Alright – and then you get an evaluation for your client. Almost all of these guys are going to come back as very low level danger to re-offend. Alright? You get an evaluation. If you don’t like it, you don’t give it to the court. Okay? I’ve had that happen but generally it’s very helpful. And you watch out for their evaluations. I had a guy come in and my evaluator said, “Hey this guys of low risk to offend”. The Government evaluator sent me a report and here is almost forbade him how it read. I get to the first 11 pages. It’s all fine and dandy, just like my guys report. Final paragraph, “I find, that there is a not insignificant risk that on this individual is released from prison, he will immediately kidnap a child, molest them and for fear of discovery murder the child and commit suicide”. Wooaah! where the hell did that come from? And the expert wouldn’t talk to me. So, I put him up on the stand and I said “did you ever see the movie jaws” and he said well sure I did. I said, I got to be honest, I’m from Iowa originally. We don’t have any sharks in Iowa. But when I go swimming in the pool in the wii — If they turn the pool lights off, I get [inaudible] I saw jaws when I was a kid you know. And I watched it again as a teenager and again as an adult. I just have visions of this mouth grab you know – the tug under.

Now – is that logical? No. But we all talk to our children about being scared of sharks or lightening. How many of us tell our kids every night, be careful as you go put on your clothes. 2,000 people a year die from tripping and falling as they go to put on their clothes. Well none of us do that. Even though the only one person world wide a year is killed with sharks, we value them differently because we value them emotionally. Do you agree with that and the doctor said, “sure”. I said, “so, give me statistical probability on this guy:”. He goes, “wohh I can’t”. Here is the thing. One out of 10 or 20 offenders might do what I said in this evaluation and for that family it would be the ultimate tragedy. So let’s say, not insignificant risk that this guy might be one and that one in 20 thousand. And the judge just snorted. Now the judge has perspective to go — this is nuts – alright so you always watch out for that stuff. And you get your expert to look at all these different risk factors and everything.

The literature is great. I can feed it all to you. All you have to – I’m an office of one. So all you have to do is contact me – I will feed you the information if you can’t find it on our website. Alright, and finally, you can tell the judge. Judge – in 5 minutes you don’t have to guess whether this guy’s dangerous – you don’t and you shouldn’t. Here’s the deal. In our systems now when these guys get out – do you think it’s the last time they will look into their lives. No. they have civil commitment hearings now, they have lifetime supervision – they have all sorts of unbelievable conditions and supervision – they can yank them back to prison. So the judge – you don’t have to do this to the people who will have to watch them for the next 20 years will be deciding they need more attention. And guess what – if they do, they’re likely to come back to you to authorize it. Alright? now this –this is Jefferson City, Missoura.

That’s where the official schools are. That’s where every place that hires teenagers. Yes. So my clients, with a conviction can live in the Missoura River. And that’s where they can go if they can get a condition that they can’t go where children frequent. That’s where they can go. Alright? So just because you’re fixated on the prison sentence, don’t forget to litigate the conditions. Make a record about everything, I had a judge who said. We got into a fine discussion and he goes, “well your client has looked at child pornography two times in libraries”. So he will not be allowed into libraries. And I said – oh judge – prison libraries? Oh God dammit Steveno – you know what I mean. Church libraries judge? You’re going to deny him Jesus Christ his Savior? Oh my God! God dammit Steveno! He throws a pen at me. He goes – no libraries – appeal it. He goes – he is not going to be allowed to have any erotic material.

And I said – what if a scented candle reminds him of his first sexual experience? Oh God!! I said – “look judge, I’m happily married but I’m also a soldier. You sent me to Afghanistan for 6 months and JC Penny’s lingerie section starts to become erotic material okay”. Like even time magazines little ad about going to the Bahamas and there’s a beautiful woman sitting on the beach, becomes erotic material. Oh God dammit Steveno, appeal me. So we did and we won. You litigate this stuff. And you argue over stuff the judge wants to do. The judge is going to want to say, ”well, we’re going to give him polygraph testing on his sexual offender counseling”. You say, “ok judge we have no objection to that if you put a condition in there that nothing he says during the polygraph testing can be used against him”. Well why would I do that? Because here is why, Otherwise I’m going to tell all 100 of my clients – say a little as possible – stand on your 5th amendment rights – hide – disobey whenever you can – don’t respond to this. And you’re going to have no clue this guy’s dangerous, that guy’s dangerous but that guy’s not dangerous and she’s not dangerous whatever.

Alright? Or – you can tell them to be honest and they will give better quality counseling and it will be tailored to their needs – and for that 1 or 2 people in a 100 who we really have to worry about—okay! you can’t use what you said against them and you will have a clear idea of who they are and you’re going to turn to your supervision staff and say that, “dude, you follow him around everywhere he goes. Okay?” And the judge is, in my experience, when you explain it to him that way – they’re like – that makes a lot of sense. And so they’ll go along with it. So you litigate the heck out of the stuff as well. Alright.. other talking points. This applies more to some other offences that you talk about plead bargaining disparities, different statements, public statements – like the attorney general has said – it makes no sense to you as a number or images enhancement to figure out whether a guy is bad or not.

In my experience, the people who have a very few images are the really sophisticated people who knew how to clear their data cache each day. The people who have a gob of stuff, are the people who have been doing it for a day. I know we’re a little bit over – I’ll be done with in another 2 minutes. Uhm one of the first things I did when I was a supervising prosecutor of 8 people in Germany, when I put them on the first child pornography case for the first time, is, I would sit them down with a laptop and I’d say, “surf porn. Legal porn. But surf porn for an hour. Surf. Go away. Look whatever you want to look at it – if its guys holding tires with a little –you know – smudge or some oil on their cheek – if it’s a woman laying on the beach you know, tugging at her bikini – whatever – just go look. Keep it legal but have fun”. Alright. And they would go look. I’d say delete everything. Alright, how much do you have on your computer? Errmm I don’t know – I have looked at a 100 pictures or so. And we’d run a forensic analysis to their computer and inevitably would have something like 37k images on their computer. Because they would go to those thumbnail gallery sites which has 500 thumbnails and you click on a thumbnail and it opens up 50 more and go nah that’s not what I want. X out of it. That’s not what I want!

Computer Crimes

By | Criminal

The problem is most of the child pornography defendants your going to see, are a little bit tougher to work with. Now you can send them to the tanning beds so that they don’t look so quite so pasty white. Now you can get them to shave off their porn stash. But, we are still going to have some problems. So, I want to talk to you about ways, principled ways that we can try and get them a lower sentence that even a judge who hates them may listen to. Alright!

Now once you’ve seen some of these cases, you start to get some perspective. So let’s talk about Joe Possessor really quick, possesses some pictures, one picture of a kid under 12. Everyone’s going to have that anymore, you can see the percentage. I know your going to be shocked. He used a computer to look at the picture. Ahh he had a couple of images, no criminal history, never abused or exploited a child. Full points for acceptance. Prominent lawyer, banker, whatever you want to say in the community.

Alright because I have seen worst and almost all of you probably have or soon will have seen worst. Alright but that’s not, how he looks to people who set out the sentencing systems. Back in 1987, he would have got no punishment. Possession was legal and you can see punishment keeps going up. Now in 2008 I wrote a article about this. I went back and I looked at the findings in congress that were driving up sentences both, Federally and in the State and I found that they had no imperial backing. And when I put that article out the Department of Justice responded and they said, “well, there’s been a gradual incremental increase in sentencing of child pornography defendants”. I don’t believe in those sort of blurring euphuisms so I want to put everything in the way so that the judge can understanding.

So what I say is, if gas was $3 a gallon in 1991 it would be $21 a gallon now alright. How many of us would call that a gradual incremental increase in our gas prices. Okay! Alright, so what about Jim Bob Swapper and to any Jim Bobs in the audience, I apologize. Jim Bob Swapper does basically the exact the same thing as Joe Pessessor but he swaps the picture and oh by the way he has a picture of bondage. Now you got to watch out. In different places, in different States and in different jurisdictions, they don’t care if it’s a picture of a child in bondage. So, if your client has a picture of Janet Jameson, that’s a very adult, very mature, voluptuous porn star and she is tied up with silk scarves and her boyfriend’s tickling her with a feather. And in the very next set of pictures, her boyfriend, lucky fellow, is himself bound with silk scarves and she is tickling him with a feather.

You may get a higher sentence for your defendant, because they are going to say well possession of bondage pictures means, this guy’s more likely to kidnap, rape, molest and kill a child. Alright, this is the sort of logic we are talking about. But in any case, Jim Bob Swapper, prominent architect, 62 years old, military veteran, no criminal history, never abused anyone, full points for pleading guilty in the Federal System. You get points for pleading guilty. What’s going to happen to Jim Bob. Well, this is what the hearings are like in my experience. It’s my turn – I make an argument for Jim Bob about what a swell fellow he is – the prosecutor weighs in with the Governments opinion and the Judges neutrally give their support you know – to the prosecutor’s argument. You know – I had this argument case after case and it practically wore on me. Ahhm and Jim Bob who would have gotten 12 to 18 months back in the 80s now in Federal Court will be right up at 15 to 20 years for the exact same conduct. Getting back to our gasoline example — $47 a gallon for gas. Just a tad price increase. Okay – well Jim Bob’s alternate sentence in the Federal System if he has a couple of 5 or 10 seconds video clip is an automatic 20 years, $50 a gallon. Well how did this happen and why should you care. How many people practice in Federal Court. Alright some of you but not all. Here’s why you should care if you don’t practice in Federal Court;

Reason#2 you should care! Some of you, I understand like to make money. Ahhm and there is nothing that a 55 year old banker facing 20 years in prison and a sex offender registry and sex offender registration for the rest of his life will not pay to get a better result. And unlike many of your 18 year old DY clients, these people tend to have money or their families do. So, that’s why you should carry your personal hook. Alright, well how did this huge phenomenal increase occur.

It occurred because of bogus fact finding by congress. Now I know that all of you have – hold congress in the highest esteem and you know that they spend each and every single day researching ways to make your life better. So it just happens that in 1996 on one particular day, they made some peculiar findings; they found that anybody who had a computer, when they looked at child pornography, deserved a higher sentence. Alright! And they gave a couple of reasons. And there’s more detail here but one short timeline. Here’s some of the reasons;

#1 They looked at a small number of offenders and said all offenders must be like the worst in the Federal System.
#2 They said, “well since, some of these guys have had repeated problems, we can assume all child pornographers are repeat offenders”
and this is my favorite one;
#3 They said, “anybody with a computer has to get a higher punishment because we know 3 things about computer users”.

#1 “only sophisticated, evil, rich, connected, mobster type criminals have access to this secret technology called the internet”.

# 2 “if anybody does anything online, there is no way of any law enforcement to ever detect the crime”

#3 “and if anybody uses a computer there will be no evidence of what they did left over ever”

So step # 1

Dig into the evidence and don’t presume your judges know anything about computers.

Perfect! Forensic technology in computers is more sophisticated to that. There will be evidence so, rule #1 Stay in your lane. Nobody here knows enough about computers. I’ve been doing computer crimes cases since the mid 1990’s. I teach computer forensic investigators all over the country about what we look for as attorneys and I still make sure that I have a computer person in on any computer crimes case I have. Even the ones I think the answer is obvious. And I will give a little story to illustrate this. Here’s the evidence they found.

They found a folder on the desktop, it was suddenly labeled, good child pornography. Alright! the files had names it stands out particularly to me, it was, 5 year old fuck stabby. Okay now some people would consider this strong evidence for the government. Ahm but my forensic examiner and i, we sat down and we took a look and we discovered something interesting. The files were created after the police took my clients computer. And nobody – we were there a day before trial and I was asked to come down and help. The police department hadn’t noticed that, the FBI had not noticed that, the military investigators had not noticed that, the prosecutor and the defense attorney had not noticed that and my client was about to go to prison the next day. And here’s what we figured out.

My client, called his uncle, a police detective in L.A and said, “my girlfriend who is very attractive, and she was, encouraged me to watch some pornography online to spice up our life”. No what 22 year old soldier is going to say no that proposition. So lo and behold they looked for some pornography online. And they found some, but it wasn’t what they were expecting. So, he called this uncle and we told him and he said go to Bestbuy to wipe your computer, you got some stuff you didn’t want. The Bestbuy employee did a virus scan, saw a picture and called up an El Paso police detective and said hey, this guy came in with his girlfriend, there’s a picture on his computer, he looks a little young. And the police detective says how young. He says ah I don’t know, it could be a high school student, it could be a young college co-ed, I don’t know. And the police detective said, “I’m authorizing you to search his whole computer”. Make a folder on his desktop, and label it, good child pornography so at least what you find that is good for the subject. And re-label any files you find to describe what is happening in the videos. So, the actual title of the video was like xxx hard core porn and it got renamed 5yr old with daddy. Okay? So always look at the evidence with an expert.

So what do we do? We examine the evidence, we examine every picture, we look at it’s location, was it deleted. Is it in the unallocated clusters. If you delete something. If you go to MSNBC and then close out of it, there is a record of it on your computer. In most cases, there are exceptions but I’ll let you talk to on that to your expert. But normally there is a record. Alright there are little pictures there, because your computer puts the stuff together like a jigsaw puzzle.

Alright, Now, most of you do not have the sophistication necessary to go into you unallocated clusters and pull those video files back out. But the detectives will try and do that to your clients and say that he was still possessing it and there is great case law just about everywhere now that says no that’s not the case. Unless they can establish that your client is really sophisticated. You look at it in its native form. If it’s a little thumbnail, and your client was looking at it on a cellphone, that little picture, you’re not going to be able to tell whether it’s a 4 year old or an octogenarian. So if it’s going to be shown to the jury, I want it to be shown in its native format. “There Jury! That little tiny white thing that’s the stuff they want to send my client to prison for 20 years for”.

You go through It and you really examine it. Alright, and you think about enhancements, they will say things like this picture here, matches up to a series of images where this little girl was raped violently get a sadistic enhancement and you could say, “aahh aahh ha it’s the same girl but my client doesn’t have the pictures where the bad stuff happens. All he has is this girl standing there naked. That doesn’t apply to us”. Alright, watch out for shady tactics. I had a client 2 years ago, this is the actual language from the report. “Agents found thousands of images of pornography with nearly all depicting females with shave or partially shaved pubic hair. Several depicting females portrayed as teens dressed in school clothes, cheerleaders with braces or virgins. Several of the magazines advertised child oriented such as barely legal”. Alright, oh this sounds bad.

I’m going to show you the 3 magazines that my client had a subscription to. Hooters, jugs and busty and these were the three subscriptions that they tried to convince the judge indicating that he had a preference for pre-pubescent kids. Because in the back there is advertisements like barely legal magazines by producers of Hustler whatever and one of the girls have like a catholic school skirt on and some shirt that like even as a xxx could barely be tied over her chest and so they said that indicated that he likes children. So be very careful of what they see. There is a tendency now for investigators to have a little checklist and they are like has some school clothes, check at least one image of a kid under 12 check. and they just go down their little check list and stop investigating.

They’ll investigate a $200 bank fraud for 4 years with 20 investigators. They will give his one hour, Alright.

Okay, our clients, our clients do not give it a ponder. There’s going to be stuff in their computer that’s going to be bad. It’s your job to do 2 things. Assess how bad it is and mitigate it. Alright, So now they have an image of a 4 year old and they have a image of a 40 year old and they have Sophia Loren and they have a somebody in a bikini and they have a bondage image and then any prosecutor in my experience is going to go judge. “Thank God we found him when we did. He was just about to take the next step”. Okay like there an inevitable link like you smoke a joint you become the head of the madine drug cartel. Alright, you look at an image of child pornography you go out and become a serial rapist/murderer.

Alright so, you look at the pictures and if they are all over the place like one day he is looking at adults and the next day he is looking at animals and the next day he is looking at kids then he is back to adults, then there is no pattern there is no next step. If you look at the stuff and you see that your client has looked at 14 year olds then 10 year olds then 4yr olds then 2 year old then 2 year olds in bondage you might want to beat feet to the prosecutor’s office and get a sweetheart of a deal before they figure that you. Alright, If there’s some stuff in there like fantasy stories or those sort of things okay, it’s going to be tough but you got to talk to the judge about them. Just because somebody has a story on their computer does not mean they want to live it. Alright, I mean I read military book and I’m an army officer and I like the books where they are in the worst sort of conditions.

I’m also I like mountain climbing, you know, so I want to read books where they are stranded in the North Pole and its miserable and it’s sucky and people are losing their fingers and their toes. It doesn’t mean I want to live that. Alright, So we have to come up with comparisons. A great comparison are the movies Hostel and Saw. I think we lost the, we lost the! Alright Hostel and Saw. Alright, Hostel and Saw. Why are Hostel and Saw great examples. Who here seen Hostel and Saw? Alright, torture is not a plot device in the Hostel and saw series. Torture is the whole movie. Who here seen more than one of those movies? Brave soul! Thank you. Thank you. Well, according to several psychiatrists I have talked to, and some psychologist I talked to, anybody who chooses to watch more than one of those movies is at some way and at some level aroused by the torture and dismemberment of others. So, we know who to be careful around at the bar tonight right. Except here is the thing. Those movies make hundreds of millions of dollars. It doesn’t mean that we have 5 million new Jeffery Dahmers roaming the streets. We look for other things. The guy who was always quiet, right at the end of the block, and tortured little animals and has a history of psychopathic behavior. The same thing in these cases. Alright so know your client.

Motions to Suppress

By | Criminal

Miller v. State! There’s two ways we often lose motion to suppress when we think we got to great case, all the police went in yea without a warrant but they went in under the ‘emergency doctrine’. Or two; it was consensual. Miller is a good case for us on both those points and Miller the court got a report that a, the police got a report in carvel that Miller was a, it was a disturbance at Miller’s apartment so they went over knocked on the door and they heard screaming, things been thrown around so they knocked on the doors and she said,” yes please come in” Miller did! And she let him in and they over stayed their welcome let’s say. And there was video tape and it turned out to be the police downfall there. It was a video tape and they said, “Where’s your boyfriend?” and she says “he’s not here, he’s gone, I’m alone, my kids are in the bedroom, I was mad, I was throwing things around because he’s been cheating on me but nobody’s hurting me” There was no physical evidence on to that should been heard but the police didn’t want to believe that so they hung around and kept asking her and they thought they would, in order to solve that question, they thought we would run warrant check on her for some reason. And she pretty quickly first politely said, “Please leave my house!” and then she actually said, “Get outta my fucking house” and that was not explicit enough for the police; they stayed around. And the court said,” they should have got out of her when she asked them 4 times to get out of her house” So even though she consented to the entry, she revoked consent.

So if you got to consent case, remember that it’s possible for your client to revoke consent and look for that. The ‘emergency doctrine’ didn’t apply either because there they supposed emergency was that the guy was, may be the guy that had beat her up without leaving any marks with somehow in the apartment but the video tape showed guess what; the cops never looked for the guy, they sat around running her warrant. And so the court of criminal appeals said in light of that very persuasive evidence there was no emergency. They were just trying to conduct a search of her apartment so Miller won and her conviction was reversed. David talked about; David Quinn talked about ‘Duarte’. It’s a great case, if you have search warrant take a look at Duarte, it says several things generally that I think may help you. A magistrate should not be a rubber stamp, let’s remember that. So even though we know that magistrates can decide things commonsensically and not rigidly and it’s deferential to the magistrate’s decision. Duarte won and magistrates should not be common sensed and to ensure magistrates should not be rubber stamps and to ensure that they not be, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.

Two good reasonable suspicion cases! I’m going to go through these real quickly David talked about one of them; Its Abney and Lothrop. If you got to reasonably suspicion case based on a statute, a traffic stop like he said I agree 100%, “get the statute and read it; you might be surprised in both these guys won, both these people won because the statute, the police men who made the stop did not have the elements of the offense to arrest the person or to even stop them on the basis of reasonable suspicion.

Clay v. State! Telephonic search warrants are neither prohibited nor authorized in Texas by statute so the court’s going to consider them on a case by case basis. And in this case court said the telephonic warrant was Okay in Clay v. State. If you ever have this situation, cops frequently don’t like to find, don’t like to put people in custody even though they are, that way they can question them without Miranda and without electronically recording them.
Ortiz is a great case, because Ortiz decided there was custody. So if you got to a situation and you need your client in custody to argue that they were wrongfully denied Miranda take a look at the Ortiz case and keep an eye on this case; Estrada v. State. Estrada’s outta San Antonio and the interesting thing about Estrada is, we hardly ever find custody cases in which the defendant is not in handcuffs. In Estrada the defendant was not in handcuffs, now Estrada lost in the court of appeals but the court of criminal appeals has granted PDR to determine whether or not Estrada was in custody even though not in handcuffs. There are five cases, they’re in my paper I’m going to finish on time, and Betty’s going to cut me off but there are 5 good sufficiency cases. Take a look at them. Few years ago when the court over ruled factual sufficiency, it said we’re going to have to take legal sufficiency more seriously. I’m not sure I believed them but in fact they are taking legal sufficiency review more seriously at least this year in the five cases.

Juror Disqualification in a Criminal Case

By | Criminal

That the jurors be convicted of a misdemeanor or a felony — that’s a disqualification that cannot be waived by other party – that the juror is under indictment or other legal acquisition for a misdemeanor theft or a felony and someone who’s on differed adjudication right now, is considered under indictment.

So that’s another disqualification that can’t be waived. That the juror’s insane. I never gotten to use this one even though I have practiced this one even though I practiced in Travis County but there’s still time. Umm, that the jurors have a defect in the organs of feeling or hearing. Basically we are talking about medical conditions.

So this one has come up on fair number of basis where you get people who have ongoing medical concerns where people cannot sit for long periods of time that they have to use the rest room frequently. I kind of want those folks to go home just because they’re going to be distracted by other things. My father who is 66 years old and he lives in Granite Shoals, which is near marble falls and is a small community and because he is one of the few people who is not running a meth lab or convicted of a felony – he gets called for jury service a lot and he asked me, “how can I get out of his? Like I’m old, I don’t want to go there anymore”, and he was too young for the exemption and I so said, “Well! dad first id tell them what you think, you’re an awful juror, you think everyone’s guilty just because they’re sitting there and second, I’d tell them you’re part deaf. Which you are, you’re catching every second of third word umm you would probably qualify under this and they’d let you go home”. The main one we are working with is that the juror has a biased or prejudiced – in favor of – against the defendant. That’s where the bulk of your challenges are going to come from.

Common challenges for cause are going to be the type of case. DWI and sexual assault examples are going to be some of the examples that come to mind for names. So you’re going to get jurors who are affected by alcohol related incidents who just – for whatever reason – cannot put that aside and be able to sit on your jury. Sexual assault is a big one. Umm I read a horrible study that about 30% of your panel – has either been a victim of a sexual offense or they have a close friend and family member – and it’s important to fair those people out because of the type of case. And some of them will tell you right out – I can’t sit on this case. But it’s important to find those people. And let the jurors know when you’re dealing with that kind of issue – that they don’t need to give out specifics in front of their 17 new best friends – you just need to know – have you ever been affected by this – -then if you want to give details later we can approach the judge’s cabin.

Police officer credibility:

There are some people who would not believe that the police would lie under oath or any circumstances just by nature of the fact that they are police officers. So that is the potential challenge for cause.

Child witness credibility:

There are some people who would not believe that children would never lie or make up accusations. The defendant’s failure to testify, and then, finally, the ability to consider the full range of punishment. This is a big big area where I think lawyers miss out on challenges for cause. Over half of our challenges come from punishment related issues. And I’ll give you a couple more examples. We did a continuous sexual assault of a child trial and so umm out of a panel of 17 we had 15 strikes for cause and a bunch of them were punishment related. We got so deep into the panel that the State had to give up 7 parameterizes in order to go forward – and it ended up being a not guilty. And I was talking to the prosecutor later and he said, “I know why I lost that case. He said it was in the jury panel selection and I know I should have let that go and we could have come back for another round”.

This can only happen when you live in Austin but we were doing a super edge actual assault for under the age of 6 and the minimum was 25. We were asking the people – whether you consider the low end of the punishment range and given the age of the child. We had one lady raise her hand and she goes, “we can’t consider less than 25?” – “No ma’am, its statutory, 25 is the minimum”. And she goes like, “it’s not like he killed anybody”, so…and the prosecutor just looks at me and like…Yeah…you know…! So, But it’s important to phrase the questions when you’re doing challenge for cross questions on these issues. It’s important to phrase the questions in a way where it is easy to say – yes. So, giving you an example from child sexual assault cases – if you’re trying to get to the issue of people who believe that – children would never lie. You can start with something like this… some people feel that a child would never lie or make up an accusation like that. Who here agrees with that statement? And you’ll get people and you will follow up with them – why do you feel that way? — Once you get one juror then you can ask who else agrees with that statement and then go through those folks and start elevating them for cause. You want to find the other people on the other side too – get a discussion going on with your jurors – so does anyone here feel differently. In this type of case – you’re — the teachers are good people to pay off because they are around children and they know their children lie. So you can get a discussion going on with the jurors and you can start getting your theory of the case out there for the challenge of cause questions.

Story Telling and Themes

By | Criminal

Everything you will ever learn, everything you will ever know, everything you will ever do, that will empower you to act, that will empower others to act, will come to you in the form of a story! We all think of facts or just the facts Ma’am.
Just tell me the facts; I want to know the facts! Facts that are not caught up in a narrative. Facts that don’t have a theme. Facts become unimportant but when they’re caught up in a story, they make you feel! They make you act! They can empower others to act.
When do you empower a jury with a story? What can we do as attorneys to use those facts that we know, turn them into stories that can make the jury act. Stories maybe accurate or they may not be accurate. But they absolutely got to be true. They’ve got to have a certain fundamental basic truth involved in them or they carry no power.

Words matter! The difference between the right word and this is another Mark Twain which is exactly right because this man was an incredible communicator not only in the written word but he was also an incredible orator and a large part of his income was made from giving speeches. The difference between a right word and exactly the right word is the same as the difference between a lighting bug and the lightening and that is so true! Have your first sentence, rewrite your first sentence; think of your first sentence is there a better word to use.

Use it for your advantage. There are long stories and there are short stories. There are stories that will take 2 weeks to tell but you control the theme, you control the narrative. You’re the lawyer, you get to start, you know. You get to spend some time with the jury but we don’t just try lawsuits. We mediate lawsuit, we deal with the public. We explain our cases to insurance adjusters. We explain our cases if we’re defense lawyers, we explain them to plaintiffs; this is why I can’t pay you the money you’d like to have. This why you should take the money, I can pay you. You’re explaining it if you’re a defense lawyer to a jury, this is why we are here and this is why we haven’t paid these people already and so remember there’s a lot you can say.

Case law on Experts in Sex Cases

By | Criminal

Ok, let’s talk about sex cases. Fleming is the most intriguing case I think out there. Its pending right now in the court of criminal appeals and in Fleming, the question now is; does the Texas constitution actually that’s not the question. In 2011, the case went up from the Fort Worth court of appeals and it went up with this question “Does the Texas constitution require a culpable mental state to prove ‘Statutory rape’?” and right now of course we all know that it doesn’t!

So it doesn’t matter how reasonable you’re client’s believe is if he has sex with somebody who’s under age, he’s guilty, consent doesn’t matter, the reasonableness of his believe doesn’t matter, it is a true strict liability crime. Well, Fleming complaint in a motion to set aside or to request an indictment that’s not constitutional. If the court of appeals in Fort Worth first held that, “Well, he didn’t preserve his error because he didn’t make the proper objection, he didn’t preserve his issue that the state constitution provides more protection than the federal constitution”. So they threw him out.

It went PDR to the court of criminal appeals and the court of criminal appeals said,” No!” much to my surprise cause the courts wash cases out many times holding that the error wasn’t properly briefed, it wasn’t properly preserved and in this case the court of criminal appeals said, “The error was properly preserved!” and they send it back down to the court of criminal appeals to decide the issue on the merits mainly; does the Texas constitution provide greater protection and require a couple of mental state in the sex case, even if the federal constitution does not? Well, the Fleming court, the Fort Worth court says that,” the federal constitutional due process and state constitutional do course of law provide, identical protection because you’re not entitled relief under federal constitution neither are you entitled to relief under state constitution” so Fleming loses! The court of criminal appeals granted PDR again and they’re going to decide this question; does either the federal or the state constitution require culpable mental state or does either the federal or the state constitution entitle us to an affirmative defense that we had a reasonable belief that the victim was 17 or older? That could be a very important case, it seems far-fetched that we’ll win that issue but I got some comfort from this the ‘Celis’ case out of court of criminal appeals a couple of weeks ago. Totally different case, they were deciding; this guy had a law license at Mexico or he said he said he thought he did and that entitled him to practice in Texas.

And he lost in the court of criminal appeals but one of the statements made by the majority in that was; perhaps there may be an instance in which stature is un-constitutional has applied to the defendant because the jury is not permitted to consider his mistaken reasonable belief about a matter that a situation is before not before as here. I don’t know, it’s an issue we’re going to have to preserve I’ll tell you that and so I filed a motion and its part of my materials and it’s just a motion to set aside. In these cases I filed this and I complain that this is unconstitutional that it’s not giving us a culpable mental state or an affirmative defense’s unconstitutional under both the federal and the state constitutions.

Crabtree is an interesting case out of the court of criminal appeals, article 62.03 clearly requires as an element of the offense. And this is a sex registration case; a failure to register as a sex offender, that among other things that is the state has to prove that he was a sex offender and he failed to register but also when his failure, to offense that he should’ve ragged it for is from a foreign jurisdictions like a different state or different country that DPS has to make the determination whether that foreign conviction for sex offense is “substantially similar” to one that’s listed under the Texas statute and if not he doesn’t have to register.

Well! It’s kind of bizarre to require that determination to be made by DPS and Crabtree argued that; it wasn’t made here and because it wasn’t made here and because that’s an element of the offense, the state’s evidence was insufficient to convicting. The court of criminal appeals denied relief on that but the court of criminal appeals granted relied and says, “Look! The statute is very plain, if the legislature wants to change it, it can but that’s not our job to change it” and so Crabtree walked. If you’ve got a case in which your client is accused of failing to register in Texas, because of a conviction from another state, you got to take a look at Crabtree. I thought surely the legislature would fix this problem but I’ve been told I don’t know this for a fact but I’ve been told that did not! So that’s still a live issue if you’ve got a failure to register case, you got to take a look at Crabtree!

This is another, this is a sentencing enhancement, the two strikes you’re out you know, if you continuously abuse a child or may be if you’ve been convicted whatever it is, if you’ve been convicted I think of a prior violent sexual offense, they can enhance your punishment to life imprisonment; well the court said; there’s also a test for substantial similarity there for out of state or foreign convictions. That does not have to be determined by DPS but the court went on to consider a ‘Three pronged test’ and in Anderson it held that the state did not meet its burden, the North Carolina statute was not substantially similar to Texas statute, and therefore it could not cause an enhancement in Texas so if you’ve got one of those cases and they’re relying on a foreign conviction, take a look at Anderson. And the court said, “Look! Because of this two strike policies is very harsh and therefore court must be careful to ensure similarity and the determination must be made with some sensitivity’’ the court says.

Rosseau is a case in San Antonio. This statute was passed by the polygamist in mind. There’s no question about it, so they’ve enhanced ordinary sexual assault to second degree felony; to a first degree felony if you show that the defendant is prohibited from marrying his victim i.e. if he’s a polygamist, if he’s a polygamist, he can’t marry his victim and therefore a second degree felony becomes a first degree felony. Well what some creative prosecutors are doing is now applying across the board. So if you’re married to A and you allegedly sexually assault B, they charge you with the first degree felony. And Rosseau said, “It doesn’t seemed right to punish me for being married” And judge Herr locally agreed quashed the indictment, but the court of criminal appeals rejected that challenge and said, “We can’t say it’s a facial defect, we can’t say you’ve got a facial challenge to the statute” the court did say and so if you’ve got one of those cases think about trying to make that challenge and as applied statute as excuse me as applied challenge to the statute. Coz the court specifically left that argument opened for another day. It seemed like something’s wrong with that statute.

Bays v. State! Outcry testimony has to come in through a live witness and not a video tape. In Bays, the outcry statute replied but rather than called the outcry witness and put her on in subject her to cross examination; the state put on a video tape between the child and the outcry witness and the court said, “the statute doesn’t support that sort of procedure”. If you search and seize your cases, Judge Cochran is one of the judges we’re losing and she’s a very good thoughtful smart judge and whenever she suggests that we do something I pay attention to it and in Aguiree she did make that suggestion, she said that; the facts in that case, the court in Aguiree went on to up hold the, the search there and deny relief to the defendant but Cochran said,” The facts presented barely passed the red faced test that is she said they so ridiculous however nobody requested findings of facts the judge didn’t make them and in that situation review is highly differential and basically anything factually speaking that the trial court does is going to be up held” So Cochran suggested this, “The losing party in a motion to suppress should always request findings of fact. The failure to do so here ‘Sealed appellant’s fate on appeal’. Absent specific findings, the appellate court’s hands are tired, ‘Factual findings can only help the losing party on appeal’.” I’m not sure I agree with that but she’s pretty strongly stating it so I’m going to give it serious consideration and I think when we lose motion, do you ever lose a motion as suppress? I lost a few! I think I’m going to start with requesting finding of facts with team leads.

Case Law on Experts in Criminal Law Polygraphs Part 2

By | Criminal

Leonard the next case. I forget the exact facts of Leonard but Leonard was on probation for sex offense and he was required to take polygraphs and he objected to that and he failed the polygraph obviously and they revoked his probation and he objected the polygraphs are unreliable. And therefore, inadmissible! And the court of criminal appeals when they first heard it, they said by I think it was 5 to 4 decision they ruled against Leonard and what they said was, “Yea polygraphs have been generally held to be unreliable but this is probation revocation, it’s not trial before jury so it’s different and we’re going to admit polygraph”. the rehearing was granted and the court turned around in a 5 to 3 decision with one judge not participating, the court turned its decision around and said that, “Look! We’ve been saying for 60 years unwaveringly that polygraphs are unreliable and therefore admissible and we’re still saying the same thin g”. They’re not admissible because they’re not reliable and it doesn’t matter if its probation before judge or trial before jury, they’re not coming in”.

The state tried an alternative attack. And they used rule703 which I’ve been troubled by for a long time but it’s well established law that rule 703 says that, “If experts relay on evidence that is commonly relied upon by experts in that field, they can use it to formulate their opinion even though the evidence is not admissible before the jury or before the trial court. The expert can use inadmissible evidence” and the state felt back on that, they said “Well! Even if polygraph evidence is inadmissible, the expert can use it to formulate the opinion that this guy is a pervert and he needs to be revoked”. The court of criminal appeals said this and it’s perhaps is a useful decision for dealing with 703. Rule 703 is not a conduit for admitting opinion based on evidence that would not meet Rule 702’s reliability requirement. So if the state tries to get under the guy’s Rule 703 evidence and you can make case that it’s unreliable, it’s not going to come in! The courts said, “We’re not asked to determine today whether we can require probation it is to take polygraphs, we’re simply saying that requiring them to take a polygraph does not justify admitting legally unreliable evidence”. It’s a pretty strong opinion.

There’s another polygraph case, they asked Dansby, “Do you have any more victims?” he was on probation and his probation officer asked him “Do you have any more victims?” Dansby, his lawyer had a thoughtfully told him if they ask you any questions like that “Take the Firth” and he did and so they instituted revocation proceedings. He refused to answer so they discharged him from the treatment program, you’ve ever heard this before and now once he’s discharged from the treatment program, they got nothing to do but revoke his probation so said the state, we didn’t revoke him because he’s refused to take a polygraph or because he refused to, because he relied on firth of mammoth, that would be wrong. We’ve revoked him because he was discharged from the program. The court of criminal appeals quite sensibly I think it look, the question here is “Was his discharged from sex offender treatment, a product of his invocation of the Fifth Amendment privilege?” And they said “he was and we hold that the court of appeals erred to conclude that it was not”.

So the court said that because he was effectively discharged from the program for taking his fifth. His revocation was reversed. So what’s going on with experts? That’s what’s going on with the experts in my opinion, you recognize that guy? Morton, the guy who was in prison for 25 years for murder which was conclusively proven that he didn’t do. So here’s what’s going on I think, trial judges I think are going to allow more and more expert testimony and scientific evidence. For fear that by keeping it out, we’re going to be wrongfully convicting people. That rule is going to work both ways though of course, more scientific evidence is going to come in when we needed but it’s also going to come in against us. Deal with the double edges, deal too with the science, bio mechanics and EMIT and blood draws. We’re having to deal a lot with a pretty complicated stuff and stuff that I think we didn’t think we were going to have to deal with back when I started practicing law number of years ago. Well! We’re going to have to start doing it. Make sure you know how to get the experts you need to file the motion particularly when you’re people are into indigent, can’t pay and then I think we can safely say, at least right now for the court polygraphs are not coming in. You know that could change in 2014 just like that though.