The following day I spoke with the student and she explained why she might have been distracted during her opening statement. Apparently the student just learned that she was one of a group of criminal defense lawyers in Lubbock, Texas, which a local television station erroneously reported on the internet had been charged with a misdemeanor crime. The television station — KCBD-TV in Lubbock — apparently confused the lawyers with the defendants they represented. KCBD apparently never bothered to check the local county records, which correctly listed the defendants and their charges, as well as the names of their attorneys.

KCBD removed the erroneous information from its website. Unfortunately, as the slandered Lubbock lawyers have quickly discovered, even deleted information can exist in perpetuity on the internet. A person who Googles the slandered lawyers’ names might mistakenly conclude that the lawyers were charged with various misdemeanor crimes.

Although a person accused of a crime is presumed innocent in a court of law, what about the court of public opinion? Where — to paraphrase former United States Labor Secretary Ray Donovan, who himself was acquitted of a crime — does a person go to get his reputation back, after he has been slandered on the internet? The answer in this case is not so easy. Arguably, the slandered lawyers have no adequate or available remedy. Here’s to hoping KCBD has access to some very good lawyers of its own. If the press sometimes wonder why people no longer believe everything in the press, the case of the slandered Lubbock lawyers is Exhibit “A.”

– Grant Scheiner

The Texas Legislature attempted to remedy an incorrect decision made by the Texas Supreme Court in the case of Beam v. State.  The Defendant in Beam was charged with a misdemeanor offense punishable by county jail time.  Obviously the case had very little merit, because Beam took a deferred adjudication on a Class C disorderly Conduct, which resulted in a dismissal.  This means the State could not prove what it had charged Beam.  Beam filed for an expunction.  The Supreme Court held that Beam had to wait until the Statue of Limitations expired (2 years) before Beam could clear her record.  

Although expunctions deal with criminal subject matter, expunctions are filed in civil district court.  This means the Supreme Court of Texas, a civil law court, heard the case instead of the Court of Criminal Appeals, the Supreme Court’s Criminal counterpart.  The Supreme Court goofed because jeopardy had attached.  The DA could not refile the case because it was barred by double jeopardy.

I applaud the Texas Legislature for noticing the injustice and trying to do the right thing.  HB 3481 was passed by the Texas House after it was amended by the Senate by a vote of 137-0.  Perry, we have all learned that you struggle with simple concepts like riding a bike, but that means that EVERYONE thought it was the right thing to do.

HB 3481 would give Texans the right to  expunction of criminal records, including law enforcement case files, 180 days after an arrest if no formal misdemeanor or felony charges have been filed and/or if the charges were dismissed.

Perry vetoed the bill on June 19, 2009.  Perry displayed how completely ignorant and confused he and whatever staff person who authored the veto are, by stating ridiculous logic to justify his injustice. 

Perry states, “Expunction statutes should not be used as a means of discovery or as a means to force a prosecutor to rush to file formal charges prematurely. Allowing a person to know the identities of witnesses or the nature of their evidence.” 

NOTICE TO GOVERNOR PERRY:  Criminal lawyers in the State of Texas already have a means of discovery after arrest.  These discovery means are found in the United States and Texas Constitutions and in the Texas Code of Criminal Procedure.  I am not naive enough to believe Perry would ever read or have the ability to understand such literature, but I will break it down for him.

When an American/Texan is arrested, the Prosecutor does have an obligation to file charges quickly,  Right to a Speedy Trial.  Perry’s logic is so out of bounds because we are talking about a person who is already arrested.   Perry is worried the Expunction process will force Prosecutors to file charges prematurely.  Prosecutors, Police, or other Government Agencies should not arrest citizens if they are not ready to file charges.

Allowing an arrested person to know the identities of the witnessess and nature of the evidence is something Rick Perry is not comfortable with.  That means he is not comfortable with the 6th Amdendment.  How Un-American is that?  As a criminal lawyer, I have no idea how to confront and cross-examine witnesses without knowing who they are.  The arrested person’s right to know the  ”nature of the evidence” is found in Art. 39.14 of the Texas Code of Criminal Procedure.  Thank heavens Perry was not around to screw that Statute up.

Here is the real tragedy of Perry’s folly:  This veto prevents the wrongfully accused and prosecuted Texans whose cases are DISMISSED because there is not sufficient evidence to immediately clear their records.  Let’s face it, potential employers and apartment c0mplexes who issue a lease are just as concerned about an arrest as they are about a conviction.  So Perry’s actions will punish wrongfully accused Texans from obtaining gainful employment and providing for their families.

Perry, next time the ENTIRE legislature, bipartisanly and unanimously puts legislation in front of you, don’t veto it because you hate America, your vicodin has you really trippin’ out, or because you are angry everyone is talking about something you just don’t understand.  Instead, just take a bike ride, close your eyes, pedal hard, pedal fast, and PLEASE do not wear a helmet on top of your perfect hair.

Needless to say, the situation is disgusting and unforgivable.  Jerry Lee Evans was in prison from age 24 to 47.   Think of all of the life events Mr. Evans has missed out on. 

 I applaud Dallas County for saving this evidence for so many years.  Criminal Defense lawyers are well aware of the problems with eye witness testimony.  Studies have shown that people who are exonerated by DNA, 90 percent of them were victims of eye witness testimony.  Eye witness testimony is very convincing to a jury, but clearly it should not be.

In some Texas counties, people caught with less than 4 ounces of marihuana receive citations. ABC 13 reports that Harris County refuses to issue citations and instead prefers to arrest persons with small amounts of marihuana. The article estimates that each arrest costs the county approximately $2,000. Last year alone, nearly 10,000 people were arrested for marihuana possession in Harris County. Get your calculator and do the math on that one!

To Arrest or Ticket. The question really is where does the county wish to allocate its financial resources and jail bed space. It is well-documented that Harris County inmates are being shipped to Louisiana because of overcrowding.

Most persons arrested for such a small amount of marijuana have bonds as low as $500, which would only cost about $75 to bond out. As a local criminal lawyer, my experience is that the final disposition of a marijuana case is typically probation consisting of community service and random urinalysis.

Therefore, although statutorily possible, incarceration is never really an issue for misdemeanor drug cases. Similiar to traffic tickets, there is no reason to arrest people who are not facing jail time. Police officers only “arrest on traffic” as a pretext to conduct an otherwise illegal search, but that is a whole different issue.

What would be different if the night in jail was replaced with a written citation? Would less people appear for their court dates? Maybe, but then you would just put a warrant out for their arrest and add an additional charge for failure to appear.

Travis County is already writing citations and Dallas County will begin the practice soon. These counties are not saying that marijuana is not a problem. They are just choosing to approach the issue with a different approach.

Taxpayers and friends of logic and reason, what do you all think?