Houston Criminal Lawyer and DWI Blog – Scheiner Law Group, P.C.

The New York Times reports that local police officer Jeffrey Cotton has been charged in the shooting of Robert Tolan.  This story has made nationwide news and has even been the subject of an episode of Real Sports by Bryant Gumbel.

Jeffrey Cotton has an arraignment setting in the 232nd District Court of Harris County, Texas.  Cotton was indicted on April 6, 2008 for Aggravated Assault by a Public Servant.   This charge is a First Degree Felony and Mr. Cotton faces 5 years to 99 years and/or up to a $10,000 fine.

Most people know the story.  Robert Tolan, 23 year old black male was driving his own car to his parents home in an affluent, predominately white neighborhood.  For whatever reason Bellaire Police began to follow Tolan and ran his license.  The officers misread the license plate by one digit and the car came up as stolen.  When Tolan pulled into his driveway, police approached him with guns drawn.  Hearing the commotoing, Tolan’s parents came outside in their pajamas.  Robert Tolan’s father, Bobby Tolan, a former major league baseball player, tried to explain to the officers that Robert was his son and this was his residence.  Furthermore, Bobby Tolan explained that it was his car his son was driving.  Bobby Tolan is forced against his vehicle.  Meanwhile, Robert Tolan and his cousin are on the ground as ordered by the police.  At some point, and officer grabs Mrs. Tolan and pushes her against the garage.  Robert Tolan stands up and says, “get your fucking hands off my mom.”

This is when the shot rings out.  Robert Tolan received a single gun shot wound to his stomach.  Disgustingly, the officer put Tolan’s parents in the back of separate police vehicles while EMS attended to Tolan.

So here we are.  I think the Bellaire Officer is going to have a tough time justifying his actions.  There is no excuse for shooting a man in his own front yard in front of his family, absent a threat of deadly force. 

This whole story stinks.  The police had no reason to run the license plate in the first place absent a traffic infraction or some suspicous reason, other than the color of the occupant’s skin, that drew the officer’s attention.  Furthermore, when the owner of the residence tells you its his son and the family’s car, the guns should go back into the holsters.  That would have been a good time to apologize to the Tolan family, not shoot their son.

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Anyone charged with a criminal offense in Harris County, Texas is likely to be overwhelmed with the number of courts in the Harris County Criminal Justice Center.

The Harris County Criminal Justice Center is located at 1201 Franklin Street in downtown Houston.

There are fifteen county criminal courts at law. The courts are found on floors 8, 9, 10, and 11. The county criminal courts hear all class B misdemeanors and class A misdemeanors. Class B misdemeanors are offenses that are punishable by up to 180 days in jail and/or a fine not to exceed $2,000. The range of punishment for a Class A misdemeanor is up to 1 year in the Harris County Jail.

The District Courts are located on floors 14, 15, 16, 17, 18, and 19. The District Courts hear all felony cases from first degree murder down to state jail felony drug cases.

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The Los Angeles Times reports that NFL Star, Dante Stallworth, has been charged with a Manslaughter charge stemming from a March 14th accident that killed 59 year old Mario Reyes.   This is the prototypical case that has formed organizations such as M.A.D.D. and caused anti-drunk driving bill boards to be put along side our roadways.  This incident occurred in Florida, and if Stallworth is convicted he faces up to fifteen years in prison.   The L.A. Times reports that Stallworth’s blood-alcohol level was a .126, which was obtained by a blood test.

These cases have a lot of issues.  The fact that a person died immediately invokes sadness and anger.  Yet, these cases are much more complicated than they appear at first glance.

The prosecutors must prove two complicated issues.  First, the prosecutors must prove Dante Stallworth was Driving While Intoxicated.  One may think this is a no-brainer becaues of the blood test.  Skilled attorneys have successfully challenged blood test results on many different fronts.  There are too many issues regarding a blood test to discuss in this blog, but I will say the results are not as hard of a fact as one may think.  It is similar to taking a person’s temperature.  I can think of three different methods to take a person’s temperature.  If you did all three methods at once, you would likely get three different results.

The second issue is causation of the accident.  Civil lawyers have been arguing since the invention of the automobile, “who entered the intersecton first?”  Just becuase Stallworth may have been intoxicated does not mean the accident was caused by him or the intoxication.  The classic example is suppose a Drunk Driver is sitting is stopped at a red light.  Then, another driver falls asleep and crashes into the Drunk Driver and the Sleepy driver dies.  Drunk Driver may get a DWI, but he would not be guilty of Intoxication Manslaughter.  Now that is an over-exaggerated example.  Typically, the cause or fault of the accident may be impossible to determine because one party is deceased and the other party is not talking. 

There is no question that all drivers get into accident without alcohol being an issue.   The question for Mr. Stallworth will be “was his alleged intoxication the cause of this accident?”  Meaning if he had not been over the legal limit, “would the accident not have occurred.”

We will wait and see!

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The Houston Chronicle reported that a Harris County man was arrested and charged with capital murder in the death of his son. From what I gathered from the article, the autopsy revealed no external injuries and the cause of death was severe trauma to the brain which the Detectives believe is consistent with Shaken Baby Syndrome.

As a Harris County criminal defense lawyer, I do not feel it is appropriate to discuss this case given the early stages of the case, the seriousness of the charge, and the small amount of information contained in the Houston Chronicle article. The man is presumed innocent and we will leave it at that for now. Yet, I am curious to know what the general public thinks about Shaken Baby Syndrome.

Do people belives this phenomenon exists? Does our medical community and modern science know enough about the brain to make such a determinaton?

The National Center on Shaken Baby Syndrome is the first place I looked. The site at http://don’tshake.com/ is the first web site I viewed. This is a very well-intended site meant to prevent child abuse. It is clear the organization is well organized and active. Similiar to Mothers Against Drunk Driving, one cannot be at odds with the purpose and reason for existence of the organization. The National Center on Shaken Baby Syndrome’s mission is to protect babies from abuse.

Yet, I found it unsettling that the site has a page titled “The Legal System’s Role in Facilitating Irresponsible Expert Testimony.” The purpose of this page was to accuse criminal lawyers of paying an expert to say the syndrome does not exist. Outright, out in the open propaganda.

I have used experts in many cases. You pay for the expert’s time and the expert gives you the opinion. You do not pay for the “opinion.”

So does anyone think Shaken Baby Syndrome does not exist? In a very intersting article, Shaken Baby Syndrome was put to the test. Michael Prange, Ph.D., Brittany Coats, B.S., Ann-Christine Duhaime M.D. and Susan Margulies, Ph.D., medical researchers at the Children’s Hospital of Philadelphia, tested the shaken baby hypothesis. They published their results last year in the Journal of Neurosurgery.

Models were used to simulate forces thought to cause shaken baby syndrome. The research showed that a grown man is not strong enough to shake a baby hard enough to tear brain tissue and cause bleeding. Wonder what inmates convicted of this charge think about that research?

Typically, shaken baby syndrome excludes injuries to the neck. The experiment showed that shaking the model baby would definitely cause injuries to the neck.

So I believe that is a major issue in a Shaken Baby Case. Was the baby’s neck injured? Medical research and common sense should require some injury to the baby’s neck to be consistent with violent shaking of a baby.

A shaken baby case is a hard case to prosecute because there is credible medical research that disputes the existence of such a phenomenon. On the other hand, these cases are even harder to defend because there is a deceased infant and loved ones and police want to hold someone responsible. Too many times there is a perfect scapegoat such as the babysitter or ill-tempered boyfriend.

Curious to know people’s thoughts…

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