Thursday, August 16, 2012

Honoring Our Fallen Heroes

Maybe it happens every day and I am just desensitized to it.  Maybe our media is focusing more and more upon tragedy so it gets reported more.  Maybe it just matters more to me now for some reason.

It seems that every day I am reading about another tragedy involving a law enforcement officer losing his or her life in the line of duty.  In the space of 3 weeks in Texas, we have had a Waxahachie police office struck and killed by a driver who is believed to have been intoxicated, a Reagan County Sheriff's Deputy shot and killed when checking on a reported suicidal man and a Brazos County Constable shot and killed while serving an eviction notice.  Add to that, today, in our neighboring state Louisiana, 2 Sheriff's Deputies from St John the Baptist Parish were shot and killed investigating the shooting and wounding of another officer.

None of these men were over 50 years old.  They all left family behind.  Many had children that will have to grow up with the memory of their daddy, not having him there by their side.  Each proudly wore their badge and went to work to protect our communities.

Don't get hung up on the fact that I am a criminal defense attorney lamenting the losses of law enforcement officers. 

First, any honest defense attorney will freely admit that while we stand to protect one set of Constitutional freedoms, the Police and District Attorneys stand forth to protect the other freedoms that we all rightly enjoy.  As was aptly explained by one law enforcement friend of mine, the "thin blue line" is all that stands between a society of laws and respect and one of anarchy.  Our jobs may occasionally force us to clash, but we all do so to protect those rights that are so dear and necessary to the continued existence of this Republic.

Second,  I am honored to count among my friends a host of law enforcement officers.  From gang officers to street cops to Sheriff's deputies, TABC agents to DPS troopers to NCIS agents, detectives to investigators to a former Texas Ranger whose infatuation with the MLB Rangers makes you sometimes wonder if he knew they weren't part of the same organization.  Each is dear to me for their own uniqueness.  All are respected for the job they choose to do for our citizens each and every day. 

We all live hectic lives with burdens and duties in them.  But, for most, our burdens and duties are not to walk amongst our fellow citizens to enforce our communal laws and worry that those that we protect may strike us down.  I just ask that you take a brief moment out of your day to pause and give thanks for the good work of these protectors...better yet, find one and tell them to their face.

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The Portrayal of Recent National Tragedies and Their Impact on Criminal Cases

The 'Dark Knight Rises' shootings.  The shootings at the Wisconsin Sikh temple.

The events above and others like them scare people.  A lot of people.  But, perhaps, the people that are scared most by the media coverage and portrayals of these horrible events are those who are charged to defend others who have been accused of committing a violent crime.

Think about it.  Every time a horrible murder or killing or shooting happens, the first thing the local or national  media tries to find and put on camera is the odd looking neighbor who proclaims, "I never saw that coming.  He was always a quiet neighbor.  Kept to himself."

The ominous portrayal of hidden killers in our midst sells commercial advertising.  But it also has the potential of making potential jurors suspicious of anyone accused of doing bad things, regardless of the level of evidence.  In a country where you are suppose to be innocent until proven guilty, the fact that our news broadcasters are trying to paint the image that a killer lurks around every corner helps create a national mindset at odds with the one conceived by the Constitution.

The Constitution expects a jury in a criminal case to question everything the State or Federal prosecutors say or do.  They must prove their case to the highest burden in the land.  They must marshal their evidence and witnesses to show their allegations are right.  They must leave no reasonable doubt behind.  Yet, this media presentation and sensationalism of alleged crimes and tragedies lends itself to a communal distrust in our fellow man and a general want for the security the government can offer.  Thus, a belief that we should no longer question the actions of those in power builds and the mere allegation passed through the national media reigns supreme.

This is compounded by the fact that every major media outlet has their own "legal analyst" who has traded whatever legal acumen they once had to become a sensationalist talking head.  Ok, that may be a bit strong. But not for most of the major media.

If you disagree, look no further than the discussion regarding George Zimmerman and Treyvon Martin.

Set aside your opinion on the case.  Wait...lets not.  Why does anyone not involved in the direct investigation, prosecution or defense of the case have a strong opinion?  I realize that as free people we have always expressed our opinions, but at one point those were the "God what has the world come too" thoughts when a brief segment of the nightly news told us about a shooting, murder, rape etc.  Or one that was more inquisitive and less judgmental. 

Now we have local and national media talking heads telling us what their speculations and opinions are and presenting those speculations and opinions as if they were grounded in FACT.  Sadly, as most trial lawyers know, the media "lawyers" aren't privy to the evidence the defense intends to present or the spin on the evidence that the prosecution intends to offer.

And yet, night after night, this is the voice that speaks to our citizens...our potential jurors.  Cloaked as news, these opinions and speculations begin to pervade the general consciousness of our nation.

Add to this mix the fact that major media outlets are willing to spin their "facts" in whatever manner best sells their commercials.  Consider NBC's decision to 'edit' Zimmerman's 911 call to make it sound like he considered Treyvon Martin up to no good because he was black.  Instead, the full recording shows that Zimmerman was responding to a request from the 911 operator for details of the individual Zimmerman was calling about.  Was Zimmerman motivated due to racial concerns?  Did he think Martin was a threat simply because he was a young black man?  The real fact is you and I don't know.  For a media outlet to spin the idea that we should believe their edited facts for ratings?  That is deplorable.

When our "trusted neutral reporters" are now reduced to spinning criminal cases before the evidence is available all in the name of the all-holy Rating, we all should fear the impact on our presumption of innocence.

Why you say?  You who have no intention or plan to ever commit a crime.  Why should you care about our presumption of innocence?  Consider any of the following possibilities:

--You see a man and a woman having an argument and he looks like he is going to hit her.  You step in to protect her and he attacks you.  You defend yourself.  When the police come, the woman doesn't want her husband to go to jail.  So she says you started it.  The police arrest you for assault.

--You are driving home late at night and stop for gas.  A unkempt-looking man approaches you.  You tell him to leave you alone.  It looks like he is grabbing for a knife or gun as he mutters to himself.  You, being a CHL holder, remove your handgun from your glove compartment to protect yourself.  The guy sees it and leaves.  Next thing you know, the police arrive, having been called by someone who "saw" what happened.  You are arrested for Aggravated Assault with a deadly weapon by displaying a firearm.

--You meet an attractive woman at a nightclub.  She invites you back to her place. You accept.  After spending some quality time together, you get dressed to leave.  She wants you to stay.  You both argue and you head home.  The next day the police knock on your door telling you that there was a report made last night that you sexually assaulted the woman.

Each situation involves someone involved in an otherwise innocent act.  But if our fellow citizens set aside the presumption of innocence, in each case you would face the real possibility of being labeled a violent criminal. And the national media awaits to spin the story against you.

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Wednesday, August 1, 2012

Valuing Your Right to Free Speech

The reporting of the going-ons over in London during the 2012 Summer Olympics gives us all reason to appreciate our Constitutional Rights even more.  A young british man apparently took his countryman's performance a little more seriously than most.  Furious that British diving-darling Tom Daley was unable to medal in synchronised platform diving, the young man hopped on his twitter account and tweeted to Daley that he had let down his deceased father by not getting a medal.  In further response to other tweeters who rose to Daley's defense, the 17 year old lashed out saying he has a gun to hunt birds and was "going to shoot theirs too."

Setting aside the startling fact that anyone cares that much about male synchronised diving, there is no question that the tweets were in bad taste.  However, what highlights how different we in the United States are from our "democratic" brethren across the pond is the fact that the tweet-happy diving fan was arrested for his post.  In Britain, they have a law against 'indecent' or 'grossly offensive' communications that cause distress or anxiety in their recipients.  

That is the state of freedom in Great Britain?  One would have a hard time arguing that his tweets were truly threatening or scary considering the only statement made directly to Daley's account was about his late father.  Moreover, this is not even direct communication.  He did not call Daley's personal number, text his personal phone or email his personal email.  He posted a comment on a webfeed that exists for open communication amongst all who subscribe to it.  Daley invites people to follow him by not setting his account to private.  It seems clear that the UK would apply this law as easily to a facebook post or any other social media.

Consider two things from this.  First, if you are going to rant about the British to one of their subjects on Facebook, Twitter, Google + or Linkedin, consider giving the country and its territories a wide berth, lest they have a warrant out for your arrest because you hurt their feelings.  Second, be glad you live in America and remember to value your free speech rights.

It is easy, and quite fair, to dismiss the notion that any law like this would pass in Congress or any of our state legislatures.  And that is absolutely  If you look around at our efforts to be nicer to our fellow man, to try to stop bullying and to reduce violence, you should remain aware of the risks some steps pose to our Constitutional Rights.

Some would say the inroads have been made already with the general acceptance of political correctness in our society today.  But one does not have to look farther than the real life impact of the Patriot Act and TSA regulations to see what happens when we allow our legitimate concern to protect on one hand to limit our freedom on the other.

So before you join a rally to push your local government to ban Chick-fil-a or to bar Louis Farrakhan from being able to give a speech, consider the effect that can have on your free speech.  Are you really ready to have the government monitor your spoken word?  Be it verbal, written, electronic or otherwise, those expressions should remain protected.

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Friday, July 27, 2012

How Can You...

I think every criminal defense attorney at some point gets "the question." "How can you defend them?" or "How can you try to set them free?" Be it at a social function or a family gathering, someone finds it necessary to carve into the soul of what we do to try and find a blackened heart. With perhaps a slightly twisted sense of humor or a knack at driving people to derision, I tend to egg on the questioner with my own bait--"defend them? You mean how can I defend you..."

I do so because it is not the police or judges or prosecutors that bear the charge of holding back the tides of our society from bursting through the seams of the writings our forefathers spilled their blood to establish in the name of our County. It is we few, those cast to wear the black hat, those sneered at for associating with the dredges of our society, that bear witness to the ebbing erosion of our Constitution and the rights we derive therefrom. It is we criminal defense attorneys, ennobled to sit at the dinner table with sinners, murderers and thieves, that push back on the attempts to restrict the freedoms and rights that make us the great United States of America.

So excuse me if my hands seem a bit dirty with the work that I must do or if my daily toils do not make you smile. I will not apologize for defending your rights. For if I do not stand with those accused, then the Constitution is not worth the old paper it is written on.

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