- Legislation filed by state Rep. Duane Bohac (HB 3165) would require the government to obtain a warrant to use "stingray" devices to intercept cell phone calls and subscriber data. The bill also would ban non-disclosure agreements which have prevented police departments from revealing information - even to prosecutors - about how they use these devices. IMO the Public Information Act already forbids such NDAs, but the Attorney General hasn't agreed and so, barring expensive litigation, this law is necessary to open up the records.
- State Rep. David Simpson has filed a bill HB 3171 aimed at "repealing civil asset forfeiture provisions and establishing criminal asset forfeiture in this state." The bill would require a criminal conviction before the government can seize assets and installs various restrictions and reporting requirements about how agencies seize, manage and seek forfeiture of contraband and illicit cash. See coverage of other Texas forfeiture legislation at the Dallas Observer.
- I'm not sure why this hunger strike, prison litigation, and the prevention of an attorney from visiting his clients at a private immigration detention center hasn't gotten more press attention.
- The lawyer for the prosecutor from the Todd Willingham capital murder case expects the state bar "to notify his client soon that it will pursue formal charges of misconduct" over failing to disclose a deal with a jailhouse informant who later recanted his testimony.
- A "dirty little secret" about many "exonerees": "They were able to prove that they were wrongfully convicted, yet very, very few could show that they were actually innocent. They were—they are—innocent, but in our legal system, that all-important fact is largely beside the point." A Texas example would be the San Antonio Four: They were essentially exonerated but not formally declared "innocent," which in Texas would entitle them to compensation for the grievous wrong done them.
- Check out this interesting looking DOJ study on maturity and desistance from crime. Among the findings: "The vast majority of juvenile offenders, even those who commit serious crimes, grow out of antisocial activity as they transition to adulthood."
- Slate's Dahlia Lithwick thinks David Dow's suspension from capital cases for a year by the Texas Court of Criminal Appeals was an "injustice." Personally, I'm a bit more sympathetic to the CCA than that. I don't doubt Dow's being singled out, but he's also singularly the source of repeated late filings (e.g., "we close at 5"), about which the court has adjusted and reiterated the rules in response to little apparent effect. File your damn briefs on time and this won't be a problem. Everybody else does.
Thursday, March 12, 2015
Warrants for stingrays, convictions for forfeitures, and other odds and ends
Here are a few odds and ends to chew on while your correspondent is focused elsewhwere:
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19 comments:
Most juvenile offenders eventually die too, thereby greatly reducing their threat to society. :)
Thanks for the news, Grits!
Bravo for HB's 3171 and 3165. It's about time!
If HB 3165 passes then perhaps we can finally learn exactly how the Intoxilyzer 5000 actually works on the inside. This machine is responsible for thousands of DWI convictions every year and nobody can testify to how it calculates the amount of alcohol in blood based on a breath sample. Convicting people based on a trade secret is absurd. The secret workings of the machine basically deny defendants the right to confront their accuser.
Slate used to be good. Now it is mostly click bait and assorted contrived garbage. If reported Dahlia Lithwick had bothered to look at Dow's work they would realized it is the same tired rehashed formula in every Dow brief: legal sufficiency, factual sufficiency, and ineffective assistance of counsel. Over and over and over. I'm not saying I could do any better, but pretending that Dow is Perry Mason is sensationalism at best.
Re: HB 3171. Nothing like giving Texas prosecutors a little extra financial incentive, huh? If Simpson doesn't wind up on Texas Monthly's 10 worst legislators list, then they might as well stop giving out those awards.
Dow is a long term defense attorney with a good reputation. Some might disagree, but Dahlia Lithwick isn't the only person who thinks so. And, the arguments are going to be standard generally speaking.
I don't know why the "example" cited is a good example of "repeated" late filings. Note, e.g., the dissent to the opinion that penalized him. And, if he is being "singled out," why isn't that enough?!
"if he is being "singled out," why isn't that enough?"
Because "he's also singularly the source of repeated late filings." If there were others similarly situated treated differently, you'd have a valid complaint. But it's really only him, as far as I can tell, and repeatedly so.
@2:43, Simpson's bill reduces the incentive for forfeiture, requiring prosecutors to actually do work (secure convictions) to pursue it. I don't think you understand his bill.
@1:42, Bohac's bill deals with stingrays/IMSI catchers, not DWI tech.
If he is "singularly" the source (though again this seems debatable given the dissent), I'm unsure why he is "singled out." You can't have it both ways. If he is "singularly" something, he isn't really being "singled" out. He is special.
The actual innocence piece only applies to federal law. An actual innocence claim is recognized in Texas and there are a fair number of Texas cases developing the actual innocence jurisprudence. Texas also recognizes an "unknowing use of false evidence" claim, which the Supremes haven't recognized yet.
Regarding the Simpson bill, here's a hypo…Two borderline dope cases. One with a $100,000 cash seizure and one without. Who's going to get prosecuted and who's going to get the pretrial diversion?
Still pretty narrow on the actual innocence front, 7:00, ask the SA4.
Joe, if he is "singularly" the source then he's the single lawyer to which the critique applies. That said, that's my outsider's perspective. I haven't read the dissent; will try to get to it.
@8:20, a counter hypo: Do you believe more people or less will be subject to forfeiture under Simpson's bill? The guy with 100K in assets was screwed either way. Plus, if it's a "borderline" case, they still have to make it.
Would the CCA do the same for a Prosecutor who is the subject of misconduct or "contempt"?
(I thought only the State Bar could issue penalties ??)
That's pretty fucking sick. You essentially said that dead non-violent juveniles reduces threats to society. Our generation will never forgive you'res for 40 years of drug wars, hope you ready for inevitable reality. Haha
Grits:
While I sometimes grimace at your subjectivity, Yes, it is your column, Cudos for your summation regarding David Dow. His failures to follow the most basic rules of procedure, i.e. file your pleadings in a timely fashion, has now cost at least TWO lives.
While being a zealous proponent of the death penalty, the only way anyone, including me, can legally justify State sponsored executions is if the due process is immaculate. Dow should know that, especially if he is attempting to teach young attorneys. Perhaps he should resign from the University of H, and focus more on being a Grisham wannabee.
In short, David Dow can be analogized to a bad surgeon; He buries his mistakes!
Semperfine, my views on Dow are as "subjective" as on anything else, you take the good with the bad. You've made that sort of comment before, but for the record, the definition of "objectivity" is not "agreeing with you."
Bohac's bill may be aimed at stingrays but the portion that amends the PIA will, as written, also apply to the Intoxilyzer 5000.
Professor Dow's missed deadlines problem includes at least one missed clemency application deadline for a client with an imminent execution date--unconscionable!
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