Sherman & Plano, TX Criminal Defense Lawyer Blog
Not to be outdone by the wisdom of the Oklahoma Legislature, our braniacs in Austin last year enacted “aggravated” driving while intoxicated provisions similar to the Sooner state, whereby a first time offender now faces a year in jail if the person 1) commits the offense of driving while intoxicated, and 2) “If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.” The offense is enhanced from a Class B to a Class A misdemeanor.
This is problematic in several respects. First of all, a year punishment range (one day short of the Federal definition of a felony) for a first time, no property damage or injury driving while intoxicated is simply ridiculous. Driving while intoxicated is one of the only offenses above a traffic ticket level that has no mental state. I.e. a person does not have to intentionally, knowingly, recklessly or with criminal negligence drive while intoxicated. If you are driving and you are intoxicated (either with a blood alcohol level above .08 or by not being normal due to alcohol or a drug or a combination thereof), you are committing a crime and face the 180 days in jail and $2,000 fine, both of which can be probated for two years. Many good people are arrested for driving while intoxicated for having one drink too many, or because the arresting officer was less competent in his detection skills than he should be.
Now, if you are arrested for driving while intoxicated and cooperate with law enforcement, and the state’s highly unreliable intoxilyzer machine, or a blood test performed by someone who was working at Dairy Queen a few weeks ago, shows a .15 alcohol concentration at the time of the test, not the time of driving, you are punished twice as harshly. Notice, this new law does not require you to be .15 or above at the time of driving, only that your test reveal a .15 or above at the time of testing.
Mr. Hurd will have a tougher time in his detention hearing and his case because, by his own statements reported to the media, he is the man in charge of his conspiracy. The primo hombre, so to speak. The Federal sentencing scheme punishes this as a “leadership role,” which normally increases the amount of time one does in the penitentiary and can block one of the few four-leaf clovers in the Sentencing Guidelines, the “safety valve.” (It was reported that Mr. Hurd stated “…his co-conspirator is in charge of doing the majority of the deals as HURD focuses on the ‘higher-end’ deals. HURD subsequently inquired if the UCA (undercover operative) and the CI (confidential informant involved in the case) could provide him with Mexican cellular telephones, as HURD believed that law enforcement did not have the capability of ‘listening’ to Mexican telephones.”) I have no knowledge of Mexican cellular phones, and won’t attempt to go there.
Wide receiver Sam Hurd, a well-liked player whose hard work earned him a roster spot on the Dallas Cowboys a few years ago, and eventually landed him a $5.1 million contract with the Chicago Bears, decided to risk it all by investing his money not in the fickle stock market but in cocaine and marijuana. Now, according to the amounts of drugs being discussed on Yahoo and the Dallas Morning News, Mr. Hurd is facing ten to life in the Federal penitentiary for conspiring to distribute five kilograms or more of cocaine in the Northern District of Texas and elsewhere. The five kilograms of cocaine is an important amount as it triggers the mandatory minimum of ten years imprisonment (and up to life).
In 1991, thirteen years after his original conviction and death sentence, the Supreme Court reversed his conviction due to illegal psychiatric testimony. Although a blatant violation of the right to remain silent and the right to counsel, the prosecution arranged for Mr. Cook to be interviewed by a State psychiatrist in the months following his arrest, the idea being that this psychiatrist would come in and testify that Mr. Cook was a continuing danger to society and needed to die. The second trial resulted in a hung jury. The prosecution tried Mr. Cook a third time and received a second death sentence in 1994, but this conviction was overturned in 1997.
The case of State of Texas v. Kerry Max Cook, the twenty year series of trials and appeals in which the State of Texas through the Smith County District Attorney’s Office (Tyler, TX), continually lied, knowingly presented perjured evidence, and did everything evil that rogue prosecutors are able to do, is a tale of one brave individual who survived it all and lives to tell about it today. Tried in 1978 and convicted on the false testimony of a jailhouse snitch, whose motive for testifying – a 2 year sentence in his own murder case – was withheld from the defense, who was personally coached by the prosecution into testifying to a detailed false confession, together with a false opinion of a state “expert” who claimed to be able to judge the age of fingerprints on a door, and the hiding of evidence by the prosecution of exculpatory evidence including evidence that Kerry Cook had been invited to the victim’s apartment three days earlier (which explained his fingerprints), were all part of an evil recipe to convict and kill a young boy for the sake of prosecution politics and statistics. Justice be damned.
The convict-at-all-costs mentality that surrounds these cases is why many defense lawyers will tell you that aggravated sexual assault of a child trials have become the Salem Witch trials of modern times. One on trial in Texas for aggravated sexual assault of a child might as well be on trial in 17th century Salem, Massachusetts for the charge of consorting with Satan. One’s friends, neighbors and even family often come in and bear false witness against the accused for whatever motive or because they believe the child, and when the accused speaks in his defense, well we would expect someone consorting with Satan to deny that they were consorting with Satan.
Last session, the Texas Legislature enacted Texas’s version “Jessica’s Law,” which increased the penalties for the crimes of aggravated sexual assault of a child under 6 and continuous sexual assault of a child. While most of us agree that a legitimate charge of such an offense should warrant a harsh punishment, those falsely accused of aggravated sexual assault of a child or continuous sexual assault of a child are painted into an even harder corner simply by being indicted. While these cases can be difficult to prosecute for various reasons, the legislation raises the issue once again of should we create such a stacked deck of state witnesses/false or highly questionable expertise, combined with draconian punishment schemes, whereby we dramatically increase the chance of false convictions to keep more of the guilty from getting away.
How do you or a loved one end up in the Eastern District of Texas, particularly the Sherman division, sitting in the Fannin County Jail in Bonham, Texas on a drug conspiracy charge? Well, the Sherman Division (with courthouses in Sherman and Plano, Texas) is a choice forum for the United States Department of Justice. They are much more likely to get a conviction in the Sherman Division of the Eastern District of Texas than in Dallas, Texas, located in the Northern District of Texas. The Sherman Division is much more white, conservative and affluent than Dallas. The makeup of jury pools is overwhelmingly white (about 85%, compared to less than 50% in Dallas), and the Sherman Division venue contains Collin and Denton counties, wealthy suburban counties in which all persons are more likely to be more white collar and conservative.
Federal prosecutors use the power of “conspiracy” prosecutions to obtain convictions all over the United States without the burden of proving that an individual committed the actual, substantive crime. Many people finding themselves charged in kilogram or multi-kilogram conspiracies although they may have simply been innocent or a user (innocent of conspiring to distribute), aggravated user (selling enough to support a habit), street dealer or trafficker. To understand conspiracy law, the best place to start with is the Fifth Circuit Court of Appeals pattern jury charge. If you go to trial in the Eastern District of Texas federal court on a drug conspiracy indictment, the jury will be given the following instruction:
“Is your commitment to life as deep as your commitment to the truth?” This is the question I was forced to ask myself this past week as I worked through an exercise at the 2011 Death Penalty Seminar at Gerry Spence’s Trial Lawyers College. Truth and life seem to be pretty equally essential values, in my opinion, but as trial lawyers our commitment to the truth must be unquestionable – lest our case be exposed as unbelievable or even contrived. The credibility of our cases as criminal defense lawyers is the key ingredient for success, so we go overboard to sift through the evidence to find the emotional and physical truth of each case. We spend long hours with our clients to truly know and love them and as individuals. Must we also abhor the death penalty and all its inconsistencies and injustices so recently exposed?