Tuesday, February 08, 2011

You can't make this stuff up: The increasingly thin line between fact and fiction

Here are a few items I don't have time to focus on in detail but which merit Grits readers' attention:

'Reasonable suspicion' includes acts that are 'not overtly criminal' but merely 'bizarre'
The Texas Court of Criminal Appeals has (once again) lowered the standard for reasonable suspicion, Paul Kennedy informs us. Now the term includes behavior that is "not overtly criminal in any way," but which might be categorized as "bizarre."

You show me yours and I'll show you mine
A new (but lesser) crime proposed by state Sen. Kirk Watson against youth sexting would also punish parents. But at least it might keep teenage girls from being prosecuted for child porn for sending naked pictures of themselves to their boyfriends.

Limiting school ticketing
The Texas Tribune has a story on three bills by Rep. Armando Walle that would regulate ticketing of students in schools.

'False economies,' law enforcement and mental health spending
Harris County law enforcement showed up at a recent Senate Finance hearing on health and human services to warn that cuts to mental health spending could devastate county jails and the criminal justice system, reported Patricia Kilday Hart at BurkaBlog.

New federal judge in Laredo
The US Senate finally confirmed Texas' first new federal judge appointed under the Obama Administration - Diana Saldana, a magistrate who was confirmed as a federal judge in Laredo. No word whether Texas will ever get any US Attorneys confirmed, thanks to knee-jerk obstructionism by Sen. John Cornyn. Notably, in his State of the Judiciary speech this year, Chief Justice John Roberts urged President Obama and the Senate to solve "the persistent problem of judicial vacancies," so perhaps filling these slots (particularly in Texas' Southern District which is swamped with backlogged immigration cases) will jump up the Senate's priority list this year.

John Grisham mining Texas judicial scandals for fiction
In his latest book, The Confession, author John Grisham mines a couple of well-known Texas judicial scandals for material, including Sharon Keller's "We close at 5" imbroglio. Another reviewer mentioned that, in the story, "The judge was sleeping with the district attorney and the appeals court didn’t even care!" This of course brings to mind the Collin County case where the Court of Criminal Appeals refused to rebuke a judge and District Attorney who engaged in an affair before and possibly during a capital murder trial, then concealed the relationship for years from the defense. I've said before about both these cases, "you can't make this stuff up," which may explain why a fiction writer might look to daily news reports instead of his own imagination for examples of such outrageous, fantastical misconduct.


Anonymous said...

In the sexting cases most of the time the young lady is not charged. The boyfriend is charged with possesion of child pornography.

Kirk said...

Regarding the lowering of the standard for reasonable suspicion, that case is an excellent example of "bad facts make bad law."

WRT the juvenile ticket bills, for a couple of decades now the school districts have been overcriminalizing juvenile behavior, by involving the police (or establishing their own police departments) instead of handling problems the old fashioned way--in the principal's office.

Kirk said...

Perhaps in the sexting cases there ought to be an affirmative defense when the two participants are within a certain age of one another--much like statutory rape scheme.

Alex S. said...

Is she a federal Judge or a Magistrate? I thought Magistrates were approved by the District Judges not the President.

Gritsforbreakfast said...

Alex, she was confirmed as a judge. She was previously a magistrte. I'd worded that confusingly and edited it to make it clear and correct.

Gritsforbreakfast said...

Kirk says "bad facts make bad law." But the way I read it the "facts" aren't the problem. Look at Kennedy's post. Some idiot called the police because another driver SMILED at them twice for Christssake, and a cop pulled the guy over based on that. There aren't any "bad facts" there, just a court making up excuses to rule however they want to, facts and law be damned.

It would be a lot more accurate to say "bad judges make bad law."

Anonymous said...

Charles in Tulia

John Grisham should have a heyday in Texas!

Anonymous said...

My goodness. Someone can send you a text and then you get in trouble for having it on your phone. Come on.

Anonymous said...

Grits. The guy didn't just "smile" at them.... Geez the liberal spin...

A couple was at a drive through after dark.

The guilty defendant, Mark, pulls along side them and smiles at them for approximately 30 seconds. Mark drives away.

The couple pulls out of the drive through lane. Mark comes back and pulls his car in front of them. He then renewed his grinning for 15 to 20 seconds.

Then Mark pulls his vehicle behind and to the left of the couple's vehicle and renewed his grinning.

The couple felt threatened by his conduct and felt like Mark was "sizing them up" or "stalking them."

So anyway they call the police on him. I mean... What idiots to feel threatened by a guy that repeatedly drives by you and stares at you and your significant other.

I would feel threatened by that but I am a simple soul....

Yes it was the courts that made a bad decision. Yes it was the cops that made a bad decision. Yes it was the couple that made a bad decision. No... They made a decision based on what is commonly known as "common sense."

I'm sorry I think that police should have the authority to make brief stops or contacts with people to determine their welfare or why they are behaving in a bizarre manner. I think that the police should have to articulate this to a court so that they can decide.... On a case by case basis if this contact was justifiable.

I mean, in your mind what should the police have done? Tell the couple "F___ you, tell us when he robs you, rapes you or runs into you then we'll respond."

The cops did their job. The courts system did its job. Hopefully the prison is doing its job.

1 for justice 0 for Mark.

Gritsforbreakfast said...

12:36, it's certainly true that cops can perform "brief stops or contacts with people to determine their welfare," but that's not what happened here. The officer instead claimed there was reasonable suspicion to think a crime was committed. There was not. Different situation.

Also, by the couple's own account, he'd driven away from them already and it's BS to claim they feared he was stalking them, which anyway runs counter both to your claim he was stopped for a welfare check and the opinion's suggestion that he could have been looking to break into cars or assault someone in the parking lot. But then, I guess if you throw enough scenarios against the wall, given the makeup of the CCA, something will stick.

People call the cops for all sorts of idiotic reasons but that doesn't mean police should then go detain someone if no crime was reported. I've been stopped and questioned because some cop thought babysitting while white counted for reasonable suspicion. For every person arrested based on such suspicion-less contacts, there are probably 10-20 others (or more) who were just harassed on the street and will never see a courtroom nor show up on your scorecard.

Anonymous said...

"There were no allegations that Mr. Derichsweiller was doing anything illegal -- just weird."

Just weird? Seems strikingly familiar to what was his name, oh yes, uh, Jared Loughner.

Don said...

Does our Texas Lege need to start working on a "weirdness" law, along with the other new criminal laws and enhancements they are considering? Let's see, Warren Chisum could spot someone who "intends to engage in sexual behavior which runs counter to the Baptist definition of 'normal'. I'm sure he could write a bill with language all of us could understand. There is all manner of "weird" stuff going on, or at least being contemplated, by criminals, would-be criminals, perverts, Catholics, Atheists, Muslims, Jews, etc. Warren could take time out from the relatively insignificant stuff the Appropriations Committee is gonna be messing with. We need this!

Anonymous said...

John Grisham's book is definately on my reading list now. However I want to recommend "CHASING JUSTICE" by Kerry Max Cook. Anyone who is interested in the mess that prosecutors, lawyers, judges and the forensic "experts" have made of the Texas Justice system ought to read this book. How can the people of Texas let this kind of behavior stand without raising a strong voice against it? Some people are just too complacent. They are not just excusing the continued malfeasance they are condoning it and therefore become a part of the problem.

For further insight into this problem read Amy Bach's new book "ORDINARY INJUSTICE How America Holds Court". That will open your eyes Texas.

Anonymous said...

I wonder if I may be arrested for walking outside ti check my mail one day?

Anonymous said...

The truth is no one really cares until them or a family member is messed up in this ridicules fiasco we now call our legal system. If you had some one in prison being torture aka Gatesville you would know and try to do something.

Anonymous said...

Grits, you misread the case. The officer did not say a crime had been or was committed.

Anonymous said...

I think YOU misread the comment. The officer claimed there was REASONABLE SUSPICION that a crime HAD BEEN committed, when there was, in fact, none.

Gritsforbreakfast said...

10:12: I didn't misread the case, but I did misstate (or rather truncate) the standard; keep in mind I was reacting in a quick blog comment, not writing a brief.

So let's be clear: There was no activity described that indicated a crime was being committed, had just been committed, or was about to be committed, which is what the law requires for an investigative detention. And the officer gave "reasonable suspicion" as his reason for the stop, not a welfare check.

Feel better now?

Anonymous said...

Go read a police blotter and see how many "suspicious person" or "suspicious activity" calls Texas law enforcement agencies receive on a daily basis.

Lets hear from someone with a constructive opinion as to how law enforcement agencies should dispose of calls from the public who report what they believe is suspicious activity but no crime is actually being committed.

Anonymous said...

In Terry v. Ohio, Terry was stopped and frisked by Officer McFadden because he and his friends were peering into shop windows in Cleveland (on a Sunday morning, or some such thing). Not only was it ok for McFadden to stop them, it's the whole basis for our "reasonable suspicion" standard. Yeah, it's squishy, but it provides officers a way for officers to investigate things that are out of the ordinary -- that's why it's "reasonable suspicion" not "probable cause".

austex1151 said...

Teen sexting...what a non-issue! We have become a little crazy in this country over such things. Awhile back a little kid (kindergarten or so?) was charged for kissing another little kid. It was a boy kid and a girl kid. Who knows how draconian this could've gotten had it been boy kid kissing boy kid??? OMG! Felony time and long sentence!!!

Once again we turn to criminalizing behavior when common sense approaches work far better with far, far less collateral damage. Where are the parents? Where are responsible adults? Have we all lost the ability to use our judgement?

Anonymous said...

This is a country that has invested heavly in the prison-industrial complex that to keep their profits rolling in they need to not only lock up adults but kids too. Look at the recent cases involving judges being paid by contractors for these private prisons.

Anonymous said...

I knew there was some reason I DELETE ALL PICTURE MAIL AND TEXT MESSAGES SENT ME,as soon as I have seen them. I also delete call history
and voice msgs immediately,,,,,you never know who might find your phone or just snoop your business.

Since I am way too old too ever be lucky enough to have a 16 yr old send me a sexting msg,,,,I don't have to worry about that one.