Times A Changing? Forfeiture Laws
What happens when the police seize your property?
The Artist Formerly Known as HPD Crime Lab
From the early 2000s the Houston Police Department Crime Lab, currently known as the Houston Forensic Science Center, has exemplified scandal. It is indeed why Houston is the nation’s frontrunner in wrongful convictions and why Houston criminal defense attorneys cringe at the sight of a forensic report analyzed by the lab.
Notable lab issues since 2002:
2002: Forensic testing temporarily suspended. Over 6,000 untested rape kits discovered (this backlog persists until 2013 when the work gets outsourced for $4.4 million).
March 2003: New York times questions if the HPD Crime Lab is the worst crime lab in the country
Nov. 2003: Report on the destruction of DNA Evidence and the possibility of pardons.
December 2003: Internal investigation ends with nine HPD crime lab technicians suspended and one terminated for shoddy lab work, amongst other serious problems.
January 2004: The aforementioned terminated analyst is reinstated to previous position one month later.
May 2005: HPD receives national accreditation through Americans Society of Crime Lab Directors (ASCLD).
June 2005: A month after receiving national accreditation, it is reported HPD crime lab analysts faked drug evidence.
January 2006: Independent research and testing reveals of the 1100 reviewed samples, 40% of DNA samples, and 23% of blood evidence samples had serious errors.
October 2007: Houston Chronicle publishes allegations of HPD crime lab Employees cheating on an open-book proficiency test.
December 2007: HPD Lab analyst indicted on theft, tampering charges. Probe into 200 narcotic cases he handled.
January 2008: HPD shuts down DNA unit again.
December 2009: Irregularities and problems with HPD finger print analyses arise.
January 2010: HPD backlog problem. 300 cases in need of firearm forensics. Backlog on DNA cases continues.
July 2011: Former supervisors at HPD crime lab testify and quit over accuracy of alcohol tests.
Feb 2013: HPD crime lab tech admits to colleagues he wasn’t following protocol when tests found to be inaccurate. Investigation reveals additional lying, improper procedures, and tampering with evidence. He is not indicted by a grand jury.
2014: Nearly two dozen cases are effective after investigation reveals a Houston homicide detective was lying.
April 2014: Mayor transfers HPD Lab to a government corporation. Renames lab Houston Forensic Science Center (HFSC). 48 HPD officers employed by the lab that offices at HPD headquarters.
January 2014: Texas Forensic Science Commission issues a report finding professional negligence on the part of HFSC employees and DWI blood alcohol analysis.
February 2015: Rape-kit backlog cleared up.
May 2015: It is learned HFSC contaminated DWI blood alcohol evidence and failed to report and notify.
March 2016: Houston’s Office of Inspector General recommends the HFSC revise its policy procedures concerning quality control, following an investigation into contaminated DWI evidence.
March 2016: HFSC employee testifies analyst ignored court’s DWI discovery evidence and withheld exculpatory evidence.
April 2016: ???
In order to be admissible in court forensic evidence must not only be relevant, but reliable. The above list casts doubt on the reliability of any forensic evidence coming from the HFSC and any serious Houston criminal lawyer should proceed with caution.
Criminal Defense Attorney – Federal & State – Texas
Criminal Defense Lawyer – Street Lawyer
10 Street Commandments
1) I will ask “Am I free to leave?”
2) If I am free to leave, I will leave.
3) If I am not free to leave, I will ask “Am I being detained?”
4) If I am detained, I will ask “Am I under arrest?”
5) If I am detained or under arrest I will remain silent.
6) I will refuse all searches (including field sobriety exercises, breath, blood tests, etc.).
7) I will request to see a warrant.
8) I will request an attorney.
9) I will be polite, but firm and not fall victim to police intimidation or deception.
10) I will record.
The Myth Surrounding Miranda
As a criminal lawyer, a common client remark is “…I wasn’t read my rights.” Contrary to popular belief the truth is the officer only has to read you your rights if: (1) you have been placed under arrest, AND (2) you are about to be questioned for a crime. For example, if you consent to a search, drugs are found, and you are arrested, police do not need to read you your rights. Any additional information you volunteer can and will be used against you.
The courts have made clear that police do not have to tell you about your right to refuse searches. Also, an officer does not need to get your consent to search in writing; oral consent is completely valid.
Fortunately you understand this. In the example above you refused to allow the search and asked the officer if you are under arrest. After being told you are being detained, you told the officer, “I refuse to answer any questions without my attorney present.”
Read more about Miranda.
The Supreme Court ruled that police do not need reasonable suspicion to use drug dogs to sniff a vehicle during a legitimate traffic stop.
Police can walk a drug dog around the vehicle during any legitimate traffic stop. If the dog signals that it smells drugs, police then have probable cause to conduct a search.
However, and this is a big however, the police are not allowed to detain you indefinitely while waiting for drug dogs to arrive. That Supreme Court held a detention of 7-8 minutes to wait for a drug dog to arrive violated the fourth amendment.
Basically, if police can’t bring a dog to the scene in the time it takes to run your tags and write a ticket, the use of the dog becomes constitutionally suspect. So if you’re pulled over and police threaten to call in the dogs, do not give in and consent to a search. By the time the drug dog arrives, it will have been an unreasonable detention in violation of the fourth amendment and your lawyers can suppress any unlawfully obtained evidence.
Criminal Defense – Constitutional Rights
Criminal Defense Attorneys – Understanding Your Rights.
Whether you are casually approached by the police or are the subject of a criminal defense investigation, you need to understand your rights.
We all have rights, but we can waive those rights. Our rights stem from and are guaranteed by Federal and State Constitutions. These rights are then molded by laws and courts.
Below are important rights or weapons of mass protection to be aware of when coming into contact with the police. It is vital to remember that while you have guaranteed rights, you have to exercise those rights or risk losing them.
- Freedom of Speech: you can say what you want.
- Freedom of Assembly: you can protest if you want.
- Right to Bear Arms: you have the right to own a gun (exceptions apply)
“Show me the Warrant!”
- This is your shield against unreasonable searches and seizures. A search or seizure can range from police officer frisks to blood draw demands to a search of your home. This amendment also imposes limitations on police investigations and prevents the use of illegally obtained evidence at a criminal defense trial.
- While “warrantless searches” are presumed to be unreasonable, a search based on your consent is allowed. In other words, don’t consent to searches.
5th Amendment – “I plea the 5th.”
- You cannot be forced by police to reveal incriminating information that may be used against you in court. In other words if the police want to speak with you, inform them “you would be happy to cooperate with your criminal defense attorney present.”
6th Amendment – “Lawyer Up!”
- You have the right to counsel and the right to be told of such upon arrest (also known as Miranda warnings). Understand anything you say will and can be used against you. For example, in a routine traffic stop and subsequent DWI investigation answering such questions about what, when, and how much you drank will come in as evidence in a criminal trial. This is true despite not being read your Miranda warnings.
Sometimes When You Win. . . Exonerations and Criminal Defense.
In the 1992 basketball film White Men Can’t Jump, it was explained:
Sometimes when you win, you really lose and sometimes when you lose, you really win and sometimes when you win or lose, you actually tie, and sometimes when you tie, you actually win or lose.
Neither does the state of our Criminal Justice System.
Sometimes When You Win…
The National Registry of Exonerations Report revealed a record (get used to this word) number of United States exonerations in 2015: 149 exonerations in fact, with five exonerations coming straight outta death row. Of the 149 exonerations, wrongfully convicted persons served on average about 14-and-a-half years in prison.
Homicide: 58 or 39 % (new record)
Drug Cases: 51 or 34% (42 or 82% of the drug exonerations came from Clutch City, Texas)
Sexual Assault: 15 or 10%
…You Actually Lose:
Why are there so many exonerations? Why are people averaging 14 ½ years in prison for something they did not do? Why since 2011 have exonerations nearly doubled? Is it the criminal defense attorneys? The prosecutors? The judges?
The answer lies in the disconcerting reasons below (exonerations were based on either one or a combination of).
Official Misconduct: 65 or 44% (a new record)
Guilty Pleas 65 or 44% (another new record)
False Confessions 27 or 18% (and another new record)
No-Crime Cases: 75 or 50%
DNA: 26 or 17%
Note: Not accounted for, but an often cited reason for wrongful convictions is mistaken identity.
There’s gonna be some stuff you gonna see
that’s gonna make it hard to smile in the future.
With nearly half of the exonerations coming from Houston, you don’t have to look very far to find shattered oaths littered by those sworn to protect and serve.
Look at the court’s findings in the David Temple case listing 36 instances of prosecutorial misconduct. Check out the Joseph Salazar case accused of attempting to disarm a peace officer, before criminal defense attorneys subpoenaed video that proved otherwise. Official misconduct isn’t just Houston’s problem, wrongdoing can be found across the country. Official misconduct is particularly troubling given the role authority figures play in the system. These are the very people at the heart of justice. The very people who have the power and authority to ensure the truth is revealed. Yet, with at least three exonerations per week it is clear some officials have lost sight of their professional duties.
Why would someone plead guilty to a crime he didn’t commit? From the outside, it seems impossible. From the inside, it is a different story. Especially, for example, from the inside of jail under FBI Investigation. The justice system is a money system. If you don’t have the bank roll to bond out of jail or defend your case, a “deal” can put you back on the job and with your family. While the intentions at this stage may not be as malicious as above, innocent people are still stuck in prisons and with permanent convictions.
How could someone be convicted of something that is not a crime?
A quick guilty plea for a low-level drug cases where subsequent lab results reveal otherwise is such an example. 51 wrongfully convicted drug cases were exonerated last year in Houston alone.
Convictions secured by “junk science” like Cameron Willingham’s arson accusation is another. Overall jurors want to do the right things. They see a well-dressed, well-spoken, so-called government expert explaining “junk science” and it sounds believable. The experts of the unsinkable ship, Titanic, sounded believable too. “Junk science” has become a “fly in the ear” for many types of criminal offenses.
People often find it difficult to believe someone would admit to a crime they did not commit. Unfortunately false confession can and do happen. Police “tunnel vision”, trained interrogation techniques, twisted words, lengthy interviews, and overmatched suspects are some of the many reasons false confessions occur. One exonerated case even involved police torture.
Still Work To Be Done
While a few major cities, including Houston, have deployed Conviction Integrity Units designed to prevent, identify and correct false convictions, there is still much work to be done. The growing number of exonerations fail to account for low-level offenders lacking the means, determination or desperation to prove their innocence. While they may not be facing death or lengthy prison sentences, the collateral consequences of a conviction carry a heavy weight. Until those with the ability to make changes for the betterment of the system do so, these flaws will remain. Criminal defense attorneys, prosecutors, and judges must demand better. So sure, it is a great that falsely accused persons are being freed at a record rate, but they shouldn’t have been there in the first place. In other words, sometimes when you win, you really lose.
DWI – Collateral Consequences
A DWI arrest and conviction can carry stiff repercussions and harsh financial penalties. That’s the bad news, the good news is you can fight the DWI!
DWI – Breath Test Machines
If you have been arrested for DWI and submitted to a breath test, there are many factors that may have caused an elevated result.
DWI and DUI Roadblocks
Drivers across the country have been using the featured signs when approaching random roadblocks. The sign does not apply to Texas, but it is a solid refresher of knowing and understanding your rights. Specifically, your right to:
- Remain Silent;
- Refuse Search Requests;
- Request An Attorney.
In Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994), the Texas Court of Criminal Appeals held roadblocks were unconstitutional, without a state wide plan setting out guidelines. To date no such plans exists and roadblocks are considered illegal.
However beware that courts have held avoiding roadblocks can provide the basis for a stop. Johnson v. State, 833 S.W.2d 320 (Tex. App. – Fort Worth 1992, pet. ref’d).
Regardless, you should not see roadblocks on Texas roads. If you do, have your sign ready!