by Houston Criminal Defense AttorneyC’mon Man . . .
Anyone watch ESPN’s NFL Monday Night Countdown? Have you seen the segment “c’mon man?” The main cast criticizes boneheaded plays that occurred in sports the previous days.
If there was a “C’mon Man” for forensic science, DPS would receive plenty of air time. It’s the usual song and dance with DPS; ignore fundamental principles of forensic testing while simultaneously claiming DWI results aren’t impacted.
1) Breath Test Inspections? We don’t need those.
In a letter dated April 2, 2020, DPS made the decision to suspend monthly onsite inspections of breath test machines. This decision is contrary to their own standard operating procedures and has left breath test results largely unchecked since the aforementioned letter. No inspections, no solution changes, no cleaning, no thank you!
2) Refrigerator Down
Biological evidence, like food, like milk needs to be stored properly. For blood, that means refrigerated at 4 degrees celsius. However, on the weekend of 05/30/20 to 06/01/20 a DPS employee arrived to learn that a refrigerator was down impacting 800+ blood kits. DPS fails to provide an actual temperature, but goes on to state the results are still valid.
Huh? If you made chicken salad on Friday, put it into the refrigerator, left for the weekend and returned to find out your refrigerator was no longer working would you serve your family the chicken salad? Of course you wouldn’t. You’d toss it out. Just as these blood vials should be.
DWI jury trials can’t start up soon enough!
by Houston Criminal Defense AttorneyMore Junk Science
Junk science that impacts people’s lives for the rest of their lives.
Don’t let it get you too!
by Houston Criminal Defense AttorneyBill passes in favor of Hemp CBD Products
Is hemp legal now? the Drug Enforcement Agency’s (DEA) and the Food and Drug Administration’s (FDA) responses will tell.
*Update: December 21, 2108: the FDA is on the record saying until the new regulations (Farm Bill Act) officially take effect, the FDA will continue strict enforcement of all cannabis products. The good news for those in the hemp industry is the FDA is open to start looking more closely at CBD, including steps toward the lawful marketing and selling of the products.
by Houston Criminal Defense AttorneyHow Many Drinks to Get Drunk?
How many drinks to get drunk?
What is Intoxication in Texas
In Texas, you are considered intoxicated (there is not a legal definition for drunk) if you have either loss the normal use of your mental and/or physical faculties OR have a blood alcohol level 0.08 or higher at the time of operating a motor vehicle.
So how many drinks does it take to get to 0.08 or higher?
Calculating your blood alcohol content (BAC)
For an old school way of calculating your blood alcohol level, keep reading. For the new school way of doing it, you can type “blood alcohol calculator” into Google and find a number of online calculators.
Widmark Formula – the OG of Blood Alcohol Calculations
The most widely known formula for calculating blood alcohol content is the Widmark formula, named for Swedish Scientist, Erik M.P. Widmark (1889-1954) who was considered a pioneer in forensic toxicology.
The Widmark formula focuses on how alcohol behaves in the body from the time it is consumed to the time it is eliminated.
Widmark Formula
Blood Alcohol Content = [alcohol consumed in grams / (body weight in grams x r)] x 100
(“r” refers to the distribution of water in the body and is a constant number of 0.55 for females and 0.68 for males)
A standard drink = one 12 oz beer, one 5 oz glass of wine, or one 1 ½ oz shot of liquor.
A standard drink is 14 grams.
Beginning the calculation of your blood alcohol level:
1) Alcohol consumed in grams (i.e. how much have you had to drink):
- Standard drinks consumed x 14 = alcohol consumed in grams.
2) Body weight in grams:
- Body weight in pounds x 454 = body weight in grams
3) Body weight in grams x “r”
- Body weight in grams x (0.55 for females or 0.68 for males)
4) Blood Alcohol Content (BAC)
- Plug in the numbers and multiply by 100 = Blood Alcohol Content
5) How long have you been drinking?
- Blood Alcohol Content – (Number of hours since drinking started x 0.015) = Approximate Blood Alcohol Content
0.015 refers our the rate our bodies metabolize alcohol per every hour.
This formula and any other online blood alcohol content calculator is an approximation at best. Because two people are not alike, there are many factors that impact the way a person’s body metabolizes alcohol. Also, Blood alcohol concentration is a percentage of ethanol/alcohol in the blood. For example a 0.08 means there are 0.08 grams of alcohol for every 100 mL of blood.
See below a chart that approximates your blood alcohol level based on number of drinks, number of hours spent drinking and body weight.
In calculating your blood alcohol level over a period of time you would subtract 0.015 for every hour spent drinking. For example, if you were a 200 lb. male who had 8 drinks you would find 0.15 on the chart above. If you had those 8 drinks over 3 hours you would subtract 0.045 (0.015 * 3 hours) from 0.15. Thus, your approximate BAC would be 0.10 (o.15 – 0.045).
by Houston Criminal Defense AttorneyAvatar Lawyer
Meet ROSS.
Created by and marketed as the world’s first artificially intelligent attorney. The AI machine, powered by IBM’s Watson technology, will serve as a legal researcher for the firm, BakerHostetler.
BakerHostetler emphasized ROSS is not out to replace attorneys, but only to be used as a supplemental tool to “reduce human error, move faster, and move more efficiently.”
The same reasoning cited by Cyberdyne Systems in creating Skynet, a self-aware, artificial intelligence system that initiated mass genocide in the blockbuster movie franchise Terminator. Unfortunately for those waiting, attorney genocide seems unlikely and this article is not about ROSS, BakerHostetler, or Arnold Schwarzenegger.
This article incorporates a different idea with the potential to terminate or at least diminish a trial attorney’s courtroom presence. Walking in ROSS’ red-carpet shadow is Adam Benforado, an accomplished professor of Drexel University Law School and author of Unfair: The New Science of Criminal Injustice, who has proposed virtual courtrooms. That’s right, lawyer avatars. His goal aims at fixing the criminal “injustice” system. A system where verdicts are rendered not on facts, but on cultural cognitions – gut feelings, prejudices, stereotypes, personal likes, or dislikes, sympathies, and generalizations. A system where incorrect Verdicts send innocent people to prison far too often.
How Good People, with Good Intentions, Get Things Terribly Wrong.
Simply put, we don’t understand how the human brain works. While we are aware humans suffer from a long litany of biases, everyday courtrooms across the country attempt the impossible. They try to control uncontrollable biases.
Any trial attorney can give you a voir dire example where an otherwise disqualified juror is rehabilitated by the court. After explicitly revealing a bias, the court instructs the juror, “you can put your feelings aside and follow the law?”. To which the perspective juror reluctantly replies, “I guess, yes.” This exchange by the judge and juror actively promotes a false notion that biases can be suppressed and controlled.
The very purpose of voir dire is to ferret out biases. Sanchez v. State, 165 S.W.3d 707 (Tex. Crim. App. 2005). While the fear of a person concealing explicit biases to remain on the jury exists, it is the hidden, implicit biases lawyers should fear most.
Explicit bias is an attitude and stereotype consciously accessible and endorsed as appropriate. Consider a person’s bias towards vaccinations. This person has a negative attitude (i.e. prejudice) toward vaccinations and also believes vaccinations are bad for your health (i.e. stereotype). In believing vaccinations should be avoided, this person is aware of the attitude and stereotype and endorses them as appropriate. Implicit bias, on the other hand, is an attitude and stereotype not consciously accessible. Consider another person who just recently developed a bias against vaccines. However, this person has a history of receiving vaccinations and has remained in good health. Based on past experiences this person may still have a positive attitude towards vaccines. Translating these biases to the courtroom, a juror with an explicit bias should recognize their prejudice against a certain class of people and reveal it. A juror with an implicit bias may perceive themselves as objective, but unknowingly hold a negative stereotype about a particular class of people. Jurors may say they will give equal weight to both a police officer’s testimony and a non-police officer’s testimony, but subconsciously they may associate an officer being more trustworthy and credible.
Check out this video from What Would You Do? and see an example of these biases at work.
Like many in the video, it is those who perceive themselves as objective who present the greatest challenge. Research has shown when a person believes himself to be objective; such belief licenses him or her to act on their biases. Eric Luis Uhlmann & Geoffrey L. Coher, “It Think It, Therefore It’s True.”: Effects of Self-Perceived Objectivity on Hiring Discrimination, (2007). Police officers, lawyers, jurors, and judges all harbor these hidden biases. In a judicial poll, 97% of judges ranked themselves in the top half in their ability to “avoid racial prejudice decision making.” Jeffrey J. Rachlinski, Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195, 1225 (2009). Not only is that figure mathematically impossible, but it is inaccurate. Implicit Association Tests (IAT’s), used to measure hidden attitudes and beliefs, revealed these “impartial” judges had concealed biases on defendants of the opposite race. Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, The Failed Promise of Batson, and Proposed Solutions, 4 HARV.L. & POL’Y REV. 149, 150 (2010). It is the need to counter these biases that stand as the foundation for the lawyer avatar.
The Lawyer Avatar.
In the first part of the two-part proposal, Benforado suggests substituting “live” jury trials with previously recorded trials. Trials that have been edited to eliminate inadmissible material, improper questions, sidebar remarks, objections, and the court’s rulings on those objections. This approach protects jurors from unlawful evidence with the potential to negatively influence their decision-making process. In essence, what jurors don’t know, won’t harm them. In part two of the proposal, he suggests an animated courtroom where lawyers and witnesses are replaced by avatars. In substituting courtroom faces with generic avatars, he believes juries will focus more on the facts of the case as opposed to cultural cognitions bolstered by implicit biases. A witness avatar would hide the physical characteristics of the person testifying (e.g. race, dress, attractiveness, etc.). The judge avatar would hide such things as facial expressions while ruling on evidentiary matters. Supporters believe virtual courtrooms would bury unwanted explicit and implicit biases.
The Lawyer Avatar’s Legal Hurdles
We can assume our founding fathers failed to take into account virtual courtrooms when writing the Constitution. In order to accommodate this idea grounded Constiutional pillars would need to be bent. The 5th Amendment provides, “No person shall . . . be deprived of life, liberty, or property without due process of law.” U.S. Const. Amend. V; See also Tex. Const. art. 1 § 13 & 19. The 6th Amendment grants the “accused the right to be . . . confronted with the witnesses against him. U.S. Const. Amend. VI; See Tex. Const. art. 1 § 10; See also Crawford v. Washington, 541 U.S. 36 (2004); Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010). Incorporated in both is the right to a fair and impartial jury that is the exclusive judge of the facts and determines the credibility of witnesses and the weight given to their testimony. Tex. Code. Crim. Proc. Art. 36.13. The central purpose of these constitutional principles is to ensure the reliability of evidence against an accused by subjecting it to rigorous testing that includes: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact. Maryland v. Craig, 497 U.S. 836 (1990). Proponents could argue courts have held that although face-to-face confrontation forms the core of these clauses values, it is not an indispensable element, particularly where the testimony’s reliability is assured and public policy is advanced. Id at 837. Adapting the criminal justice system to protect innocent persons from spending years in prison, certainly seems like a valid public interest. On the flip side, appellate courts are careful not to “invade the province of the jury” when reviewing cases. This is due in part because the black robes were not present at trial. It is the jury’s role, not appellate judges, to determine the credibility of the witnesses and the weight evidence should be given. Although one could argue the current legal system shows jurors are deciding cases on things unrelated to the facts of the case, these clauses exist to protect the accused. An adverse witness hiding behind an avatar not only deprives the jury the ability to get a complete picture of the witnesses demeanor but also deprives the accused of truly testing the witness’ story. The witness will feel more comfortable and more confident without having the eyes of the courtroom on him or her, an essential element of confrontation.
Attorney Genocide?
Who knows if virtual courtrooms will ever take a seat in the American justice system or if avatars will help fix a broken system. In the meantime using prior wrongful conviction as lawyer avatar case studies could yield compelling information. Also, judges, lawyers, officers, and jurors should become aware and educate themselves of these biases and courts should take measures to ensure a fair and impartial jury is seated. United States District Court Judge Mark W. Bennet, for example, spends twenty-five minutes with jury panels during voir dire discussing implicit biases. He shows jurors the above video and has a plaque in the jury deliberation room that reads:
I pledge: I will not decide this case based on biases. This includes gut feelings, prejudices, stereotypes, personal likes or dislikes, sympathies, or generalizations.
We must lay to rest this notion we are infallible and objective. Failure to do so is a vote of injustice. An endorsement that it is okay to send innocent people to prison. As we continue to search for a just system, as we continue to live in a nation where anything is possible, who knows, maybe a lawyer’s courtroom presence will slowly become…terminated.
by Houston Criminal Defense AttorneyVeteran Criminal Defense Attorneys – Eliminate the Threat
Recently media outlets reported the Navy Seal responsible for shooting and eliminating Osama bin Laden was charged with DUI. Now, this special-ops veteran, willing to sacrifice his life to protect the United States, its people, and the government finds himself being prosecuted by that very same institution.
While the majority of veterans return home stronger and wiser from their service, many others bring their war home. Silently suffering from invisible injuries like Post-Traumatic Stress Syndrome (PTSD) and Traumatic-Brain-Injury (TBI). Feeling as if their native land is enemy territory, post-combat veterans may become confused and threatened. Trained to eliminate the threat, veterans fall victim to alcohol and substance abuse. As time progresses these symptoms worsen. When self-destructive, reckless and violent behavior turn to criminal behavior, should we be all that surprised?
Eliminate the Threat:
Early on and as part of a soldier’s training, the United States government employs an intensive psychological conditioning program encouraging violent reactions to threats. Fortunately for civilization, the vast population is not wired to kill and doing such is unnatural. In order to simulate warfare, combat-training focuses on turning that unnatural act into a natural one. Doing so not only enhances the likelihood of survival, but success and victory as well. Soldiers minds are shaped to reactively eliminate all threats. The end product yields an instinctive killing machine. However, once service concludes, they are not adequately deprogrammed. When such unnatural training joins forces with psychological trauma, violent and criminal acts are a real possibility.
A Veteran’s War at Home:
Psychological trauma has long been a recognized consequence of veteran combat. Service related illnesses such as post-traumatic-stress-disorder (PTSD) and traumatic brain injury (TBI) have been associated with struggling veterans re-entering society post-tour. Veterans trying to cope with the battlefield horrors and families and communities unable to understand make American returns especially difficult. These invisible-injuries are often unreported and untreated, leading veterans to self-medicate with alcohol and drugs. Over time these substances exacerbate symptoms before the troubled veteran spirals downward into self-destructive, reckless, violent or criminal behavior. Even treated, medical professionals have linked anti-depressants to manic-like reactions, aggressiveness, suicide, loss of impulse control and violence. 1 It has been a reported there are 22 veteran suicides a day. That’s 22 a day!
While recorded history dating back to early wars suggest psychological trauma may manifest into criminal behavior, only recently has this been studied. 2
The National Science Institute of Medicine (IOM) in 2012 released a report finding, “PTSD is commonly associated with substance abuse, unregulated anger, aggressive behavior, and hazardous use of alcohol, all of which are, themselves, associated with legal problems and incarceration.” 3
Prior to that report, in 2009, following a highly publicized wave of homicides and other violent crimes committed by returning soldiers, the Army commissioned a study known as the Epidemiological Consultation, or EPICON. 4 EPICON attributed two major factors to post-deployment violent behavior: (1) repeated deployments and (2) the intensity of combat in those deployments. The more soldiers were exposed to combat, the more they showed effects. This study is especially troubling in light of America’s most recent war and the number of multiple combat tours troops have served. Reports show a large number served at least two tours, with special-ops serving over twelve tours. 5 In contrast during World War II and Vietnam the majority of troops served only one combat tour. 6 The above mentioned IOM report listed over 500,000 PTSD diagnosed veterans from Iraq and Afghanistan and expects that number to climb. [see Comm. on the Assessment of Ongoing Efforts in the Treatment of Post-traumatic Stress Disorder, Inst. of Med. of the Nat’l Academies, Treatment for Post-traumatic Stress Disorder in Military and Veteran Populations: Initial Assessment at 322. [/ref] That number does not include the many veterans who are self-medicating and yet to be medically diagnosed. The evidence clearly supports there is a high number of post-combat veterans in America wrestling their inner-demons.
The State of the Criminal Justice System and Veterans:
In the past, post-combat trauma turning into criminal behavior had been discarded by the criminal justice system. Veterans were sentenced to prisons, asylums, or chronic homelessness. In fact, a 2004 report by the Bureau of Justice Statistics found, despite having shorter criminal records, veterans reported longer prison sentences than nonveterans (on average 22 months longer). 7 The justice system viewed soldiers as a threat, instead of focusing on the actual threat, their mental health.
Fortunately progress is being made. The federal government, for example, under Section 5H1.11 of the U.S. Sentencing Guidelines illustrates the need to distinguish the veteran defendant from other defendants via service and experiences. Similarly the United States Supreme Court in Porter v. McCollum (2009) highlighted failure of defense counsel to present the veteran’s combat service and resulting trauma at sentencing was sufficient grounds to support a claim of IAC.
State courts have followed suit implementing a number of veteran courts specifically designed to treat as opposed to sweeping soldier’s internal issues under the rug. Low-level offenses often end in dismissal under these programs, allowing veterans the opportunity to expunge or erase the incident entirely. Houston courts have initiated such programs for veterans.
Growing sympathy for veterans from the prosecutorial side has even shown to be significant. A study polled 35 prosecutors from various states and found “overall, prosecutors view veterans as less-blameworthy for low-level offenses than nonveterans.” It was also shown veterans were offered heavy treatment programs as opposed to jail or probation like the counterpart nonveteran defendants. 8 Jennifer Kelly Wilson, et al., Prosecutor Pretrial Attitudes and Plea-Bargaining Behavior Toward Veterans With Post-Traumatic Stress Disorder, 8 Psychol. Services 319, 322. 326 (2011). From a practice standpoint, I have found prosecutors eagerly willing to listen and accept documents supporting a veterans criminal case.
Defending the Veteran:
Similarly, defense counsel for veterans have become more aware of mental illnesses a veteran may be struggling with. Using such things as VA medical records, service records, honorable discharges, honors and awards, etc., criminal defense attorneys are able to paint a complete picture to the trier of fact. This picture provides an outlet for the decision maker – whether it be the dismissal of charges, a not guilty verdict, or a mitigating sentence.
One cannot predict who will and will not suffer from these silent and invisible injuries. I know and have spoken with veterans who have come back and been able to channel their inner-struggles into something positive. Strong community ties and supports systems assist them greatly. Unfortunately, not everyone is able to shake what they have endured and witnessed. I have great admiration and respect for all veterans. For those still at war with themselves we must continue providing healing environments. We must eliminate the threat.
Notes:
- Exploring the Relationship Between Medication and Veteran Suicide: Hearing Before the House Comm. on Veterans Affairs, 111th Cong. (2010) (statement of Dr. Peter Breggin, Psychologist), available at http://democrats.veterans.house.gov/hearings/Testimony.aspx?TID=65592&Newsid=525. ↩
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A Revolutionary War veteran, describing conditions in South Carolina after the war, wrote, “Highway robbery was a common occurrence, and horse-stealing so frequent that the legislature made it a crime punishable with death.” Allan Nevins, The American States During and After the Revolution, 1775-1789, 454 (1924). Additionally, after the Civil War, a great wave in crime and disorder was documented. Historian and attorney Eric T. Dean, Jr., noted: The Civil War “let the genie out of the bottle,” as the violence of the war years spilled over into civilian life in the post-war era. During the war, soldiers had been trained to kill and thereby threw off the restraints of civil society and accepted a life of violence; there was no immediate way to put an end to the habit of violence and reintroduce all of these men to the industrious and peaceful vocations of life. In both the North and the South a period of turmoil followed the end of the war. Eric T. Dean, Jr., Shook Over Hell: Post-Traumatic Stress, Vietnam, and the Civil War, 98 (1997). ↩
- Comm. on the Assessment of Ongoing Efforts in the Treatment of Post-traumatic Stress Disorder, Inst. of Med. of the Nat’l Academies, Treatment for Post-traumatic Stress Disorder in Military and Veteran Populations: Initial Assessment, 322 (2012). ↩
- U.S. Army Center For Health Promotion and Preventive Medicine, Epidemiologic Consultation No. 14-Hk-Ob1u-09: Investigation of Homicides at Fort Carson, Colorado November, 2008–May 2009, ES-1 (2009). ↩
- Mark Owen & Kevin Maurer, No Easy Day: The Firsthand Account of the Mission That Killed Osama Bin Laden (2012) (author, a Navy SEAL who participated in the mission to kill Osama Bin Laden, notes that he participated in 13 combat deployments to Iraq and Afghanistan). ↩
- Jeremy Schwartz, As Soldiers Leave War Behind and Return to Fort Hood, What Comes Next?, Austin American-Statesman (Nov. 5, 2011, 8:23 PM), http://www.statesman.com/news/news/local/as-soldiers-leave-war-behind-and-return-to-fort—1/nRgxg/. ↩
- Bureau of Justice Statistics Special Report, Margaret Noonan & Christopher Mumola, Veterans in State and Federal Prison, 1 (2004). ↩
by Houston Criminal Defense AttorneyRecognizing Evidence Tampering in Criminal Cases
Criminal lawyers often receive evidence in the form of photographs, audio recordings, and video recordings.
In order to be admissible in court the image or recording must be authentic. Today, easy-access to software allows even the unskilled computer user to create a new reality in minutes.
Image-audio-video tampering is the addition, removal, or relocation of content in a previously authentic recording. Contrasting resolutions within an image, audio interruptions, and additional video components (e.g. picture-in-picture) can call the evidentiary authenticity into question. Science permits different methods to review whether evidence has been tampered with.
Photo Response Non Uniformity (PRNU)
PRNU is the unique noise profile imprinted by a recording device onto the produced file. The PRNU can be extracted from the recording and compared with the devices known PRNU. Unmatched profiles can indicate the evidence has been altered.
Electric Network Frequency (ENF)
By measuring the underlying frequencies from a recording, ENF allows the analyst to determine where and when a recording was created. This assists in finding if the recording was created where and when it was purported to be.
File Name Extensions
File name extensions are unique to the equipment manufacturer and if an image or recording has been altered the new file name extension may reveal bad faith.
Metadata
Metadata (e.g. GPS coordinates) can reveal facts about the recorder’s model number, user settings, physical location, and more. These values can then be compared by the attorney’s known case facts. A useful tool for criminal defense.
Light Test
Light travels in a straight line, until an object throws off it’s intended path. For an image the light test involves drawing a straight line that touches upon an object and it’s corresponding point on the shadow. This is repeated for each point on all objects casting a visible shadow from the light source. All the lines should intersect at the same point. If any line does not intersect at the light source, then the object touching this line may have been added.
Ear Test
With audio recordings, incomplete words, sudden audio background changes, vocal fluctuations, pauses, clicking sounds and repeated phrases may all indicate edit points and tampering.
Eye Test
Is the resolution of an image or recording consistent with the recording device? Video-dvd’s created via post recording leave open the possibility of altercation. Also, the appearance of title screens, picture-in-picture (PIP), zooming and speed changes on a video can be proof of the video has been altered.
Error Level Analysis (ELA) and Video Error Analysis (VELA)
This test recompresses image and video files to identify affected areas. Postproduction changes will be disproportionally affected greater. The results can also identify which editing software was used.
The testing methods above provide reliable tactics if authenticity of an image-audio-video is at issue. Even if the evidence has not been altered, information obtained can provide powerful tools for a trial lawyer to use in defending the case.