Archive for the ‘TCDA’ Category

Memo from the DA’s office.

Wednesday, April 12th, 2017

For a long time now, the policy of the Travis County DA’s office has been to present all cases involving police shootings to a grand jury for review, no matter what the circumstances where.

That was the case, for instance, for Austin police officer Carlos Lopez, who a grand jury no-billed 11 months after he shot and killed a gunman who was randomly shooting inside the downtown Omni hotel. The gunman had already shot and killed taxi driver Conrado Contreras by the time Lopez arrived.
It also happened with Austin police Sgt. Adam Johnson, who a grand jury declined to indict in 2015 for shooting and killing a man in downtown Austin who was standing in the middle of Eighth Street firing a rifle at police headquarters, and had already sprayed several government buildings with gunfire.

Not any more. The new Travis County DA, Margaret Moore, has decided that her office is going to review officer-involved shootings, and only present the ones that they feel require review to a grand jury.

She will only take cases to grand jurors if she thinks the shooting was unlawful or if facts about what happened are in dispute.
Unlike predecessors, who have viewed grand juries as independent reviewers best equipped to determine whether to indict an officer, Moore said she also will issue an opinion, with help from the new Civil Rights Division she has established, and provide a recommendation “as to the legal sufficiency of a case.”

Bad idea, as I see it.

There are a lot of problems with the criminal justice system, including grand juries. Jurors sometimes aren’t much more than rubber stamps for the DA’s office. But at least they are independant. At least grand juries offer some kind of outside review, flawed though it may be. This is going to backfire badly on DA Moore the first time a shooting that didn’t get reviewed blows up.

I’m baffled by the NAACP’s support for this: you would think they’d want the additional scrutiny, but perhaps the DA was persuasive. The support of the police union makes a little more sense:

Moore said those cases often have taken months to present to a grand jury because of workload and a backlog of other cases, leaving officers in limbo and sometimes preventing police officials from closing administrative investigations.

The people who have spoken to our CPA classes and that have been involved in shootings have said that there is some stress involved in waiting on the grand jury verdict. But they downplayed that specific part of it. Yes, the aftermath is highly stressful (and the department has good programs in place to deal with it). But it seemed to me that they felt the grand jury verdict was just the end: by the time that came in, they’d already been cleared by Internal Affairs and the Special Investgaions Division, and had usually moved on to other assignments.

(I can’t recall a case in…well, ever, where APD ruled a shooting okay and a grand jury indicted. Maybe the Kleinert case mentioned in the article, but I’m not clear on what action APD took in that case. In the most recent case that I know of where there was any controversy – the naked 17-year-old – the grand jury no-billed but APD fired the officer anyway.)

Annals of law (#12 in a series)

Thursday, March 23rd, 2017

Section 29.03 of the Texas Penal Code defines “aggravated robbery”:

Sec. 29.03. AGGRAVATED ROBBERY. (a) A person commits an offense if he commits robbery as defined in Section 29.02, and he:
(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:
(A) 65 years of age or older; or
(B) a disabled person.
(b) An offense under this section is a felony of the first degree.
(c) In this section, "disabled person" means an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm.

Seems mostly clear, right? Except: what constitutes “a deadly weapon”?

Is “a pellet gun” a deadly weapon?

Dustin Clark and two other men are suspected in a string of convenience store robberies in Travis County. They were stopped by the Lakeway PD in December of 2015, shortly after allegedly robbing a store in Spicewood, holding “pellet guns” to the clerk’s head, and threatening to kill him. The police found the pellet guns, money, ski masks, other identifying clothing, and a pack of Starburst allegedly stolen by Clark in the car. (The police also found “two deer rifles” in the trunk. I have seen contradictory reports about whether these were airsoft guns or real rifles. However, the “deer rifles” were not used in the robbery, and were not part of the criminal case as best as I can tell.)

Mr. Clark went on trial this week. There seems to have been little doubt about his guilt: his own attorney conceded that it was his client on the surveillance video from the store. The main legal issue was is it plain old robbery, or aggravated robbery?

The pellet guns were found unloaded and not carrying a C02 cartridge that would have made them operable.

Mr. Clark was offered a plea deal of 40 years before trial. The maximum for plain old robbery is 20 years, and 99 years for aggravated robbery. I don’t know enough about Mr. Clark’s background to be able to estimate what the likely sentences would have been.

Mr. Clark turned down the 40-year deal and chose to go to trial. His attorney moved to include robbery as a lesser charge for the jury to to consider, but the Travis County DA successfully fought that motion. So the only charge the jury was allowed to consider against Mr. Clark was aggravated robbery.

And they acquitted him.

But the jury could consider only one charge — aggravated robbery — and after more than six hours of discussion they finally united and ruled that the pellet guns the men used to scare two employees are not deadly weapons. Therefore, several of them told the American-Statesman, they had to acquit Clark. About half of the 12-person jury granted an interview request saying they wish they had the option to convict Clark of the lesser charge.
They said there was no proof the guns contained pellets or the CO2 cartridges that power them at the time of the robbery.

I personally wonder how the clerk was supposed to know that. I’d also really like to see photos of the pellet guns. And I wonder what else this means, legally? Not that I would, but if take the firing pin and cartridges out of a Smith and go hold up a Stop’N’Rob, is it just robbery? The gun can’t fire, right? So it’s not a deadly weapon, at least if I understand the logic here correctly.

[Travis County Assistant DA Amy] Meredith added she still believes aggravated robbery “was the appropriate charge.” State district Judge David Crain denied the defense’s motion to include the robbery charge after taking a break in chambers to research the law. Prosecutors had made Crain aware of a ruling from a case 11 years ago in which pellet guns had been found to be deadly.

I don’t feel too bad for ADA Meredith. Even though she didn’t get a conviction in this case, she did make an interesting legal point. I don’t think this rises to the level of precedent because Judge Crain’s ruling hasn’t been reviewed by a higher court, but perhaps this is something the Texas legislature could offer some additional guidance on. Also, Mr. Clark is still facing charges in six other robberies, so it isn’t like the TCDA whiffed on their only chance to convict him.

I thought about blogging this when the first story appeared Tuesday, but didn’t get to it (this is a busy week). But RoadRich emailed the print version of the story yesterday, which led to a lively discussion between him, myself, Mike the Musicologist, and Lawrence.

MtM observed that he recalls one of the northern states changing the law some years back so that if you brandish a fake weapon with the intent of making your victims think it is real, you get treated like it was real. Spray paint the end of that airsoft gun black and use it to hold up a liquor store? Big boy rules apply.

I think both MtM and I are on the same side of the divide when it comes to the increased tendency to criminalize everything and sweep up more people in the web. But I also think we’re both in agreement that this is the kind of “play stupid games, win stupid prizes” law that we could get behind.

(On a related side note, I’m halfway tempted to start a podcast with the four of us sitting around eating dinner and talking about legal issues. I even have a name for it: “I’m Not A Lawyer, But…”. I figure it should be easy to get sponsorship from SquareSpace, at least. If it proves popular enough, I might even offer to fly Ken and/or Patrick in as special guests for barbecue. That is, if their heads haven’t already exploded. Episode 1 is going to called “Rule of Parties be damned”.)

Half a million dollars.

Thursday, February 2nd, 2017

This is slightly old news that I’ve been meaning to note for a couple of days now. I still think it’s worth mentioning, because it seems to me there’s something buried in the press coverage.

The Travis County Commissioners Court has voted to pay Judge Julie Kocurek $500,000.

“Does this have something to do with her being shot?” you might ask.

Indeed, it does.

“But why? The county didn’t shoot her. The cops didn’t shoot her. She was shot by a bad guy.”

Indeed, this is true. The money is being given as a settlement for “any claims against the county that Kocurek could have sought in a lawsuit”. Some of this is spelled out in the Statesman stories, and some of this is me reading between the lines, but it looks like the argument is:

  • There was a credible tip that Chimene Onyeri was targeting a judge.
  • The tip was investigated by the Travis County DA’s office.
  • Apparently, the investigators thought that the judge being targeted was both a male judge and one that wasn’t in Travis County.
  • It isn’t clear to me if the investigators knew that Onyeri had an appearance coming up in Judge Kocurek’s court (where he likely would have been sent back to prison) and ruled her out as a target because she wasn’t a male judge, or if they weren’t aware of his upcoming appearance.
  • In any case, they decided there was no “credible threat to any Travis County district judge”.
  • Judge Kocurek was shot three weeks later.

It’s hard for me to tell if anyone was wrong here. On the one hand, it seems like there was a credible threat: was it dismissed because the investigators screwed up and didn’t realize the subject of the threat might not have a been a male judge? And a big question is: why didn’t they warn all the judges? On the other hand, there’s an argument that the investigators did the best they could with limited information. And if they sent out warnings to all the judges every time some jackhole shot his mouth off, pretty soon it’d be “The Boy Who Cried Wolf” all over again.

No matter what, though, taxpayers are going to be out $500,000. I don’t begrudge Judge Kocurek the money: if you offered me $500,000 to let someone shoot at me, my response would be three words (two of those being “go” and “yourself”).

But it still bothers me.

On the legal beat.

Wednesday, December 7th, 2016

Travis County DA Rosemary Lehmberg, as promised, did not seek re-election. Margaret Moore is the new DA, and will take over January 3rd.

But she’s already making her mark: she’s fired 27 people.

Seventeen attorneys, 12 investigators and six administrative staff are retiring or have been told they will no longer have jobs when Moore takes over on Jan. 3. Additionally, 13 lawyers are being bumped to a lower classification and will take paycuts. And more changes may be coming. Moore told the American-Statesman on Tuesday she still has decisions to make on some administrative positions after wrapping up interviews this week.
in all, 48 people in the 238-employee agency have been affected by the moves. Twenty-seven were told their services will no longer be needed; they will not receive severance pay.

Is this good or bad? The DA’s office seems to want to spin it as “good”:

The shakeup marks the most sweeping personnel shift at the DA’s office in decades, with Moore carrying through on her campaign promise to reorganize after 40 years of a continuous administration that began with Ronnie Earle and continued with Rosemary Lehmberg.

And it isn’t unprecedented for a new DA to want their own people. See Pat Lykos. Okay, maybe that was a bad example…

But there also seem to be some possibly legitimate concerns:

District Judge Karen Sage questioned Moore’s decision to reassign a prosecutor who had been tasked with handling complex mental health cases. Others in the legal community were surprised when Moore appointed defense attorney Rickey Jones to a key mid-management position despite Jones’s two bar sanctions — one for giving questionable legal advice and another for questionable advice as well as intermingling his money with his clients’ funds held in a trust account. The sanctions were lifted in 2007.


Moore said she will reassign the attorney who prosecutes mental health cases, Michelle Hallee, which caught the attention of Judge Sage, who says the move has her “deeply concerned.” Several years ago, Sage had a hand in creating a court program for mentally ill people accused of minor crimes that decreased the time they spent in jail by 50 percent. Sage said it would be a mistake for Moore to assign mental health cases to prosecutors who are not sensitive to the needs of the defendants and are more interested in securing a conviction than creating a path for rehabilitation and reducing recidivism.

In other news, here’s an idea: why don’t we separate the crime lab from the APD? This makes a lot of sense to me: one of my ideas for criminal justice reform is to make crime labs arms of the court system itself, reporting to the judiciary, rather than arms of law enforcement. I’m sure that the vast majority of people who work in these labs remain independent, but it still looks and feels unseemly to me to have that kind of reporting relationship.

It seems like Grits agrees, though he calls for the lab to be “truly independent, as was done in Houston“.

I could live with that. They might need a new building, which probably means more bonds and more taxes, which does not excite me. But I think I could vote for that, too, as long as they put two quotes over the doorways:

Fiat justitia ruat caelum.

I beseech you, in the bowels of Christ, think it possible you may be mistaken.

(See also.)


Friday, October 18th, 2013

Shon Washington is going to do four years in state prison. You may remember Mr. Washington as the man who looted the Christmas Bureau. (Previously.)

While searching for a good link on the Washington story, I ran across this:

The receipts from Twin Liquor stores all over town show [Travis County DA Rosemary] Lehmberg purchased 72 bottles – or 23 gallons – of vodka on her credit card over a 16 month period.

72 bottles over 16 months is 4.5 bottles per month, or a little over a bottle per week. Or, if you want to look at it another way, 23 gallons over 16 months is 1.4375 gallons, 184 ounces, or 5441.53 ml per month. Assuming a 30 day month, that’s a little over 6 ounces of vodka a day. Or somewhere between two and three stiff drinks.

He says he released the booze receipts in an effort to prevent Lehmberg and her supporters from pretending a problem doesn’t exist.

If you drive drunk with an open bottle in your car, you have a problem. If you have two stiff drinks a day, do you have a problem? I’m not so sure. (One of the current comments on this story calls out the hidden assumption that she drank it all herself, rather than having parties, having friends over, another family member drinking some of it, etc.) And it bothers me a little that the attorney was able to get records of her purchases from Twin Liquor. I buy from Twin Liquor; is some lawyer going to be able to subpoena records of my purchases? Should I start paying in cash?

(Another hidden assumption: she only bought from Twin Liquor, and not from Spec’s, or any of the dozens of other liquor stores around town.)

(Am I the only person who sees Debs Liquor and thinks to myself, “Well, good for him. I’m glad he found more honest work than running for president.”)

Random notes: August 14, 2013.

Wednesday, August 14th, 2013

Ford stopped making the police variant of the Crown Victoria in 2011. We’re now in 2013, and police departments are starting to retire the last of the Crown Vics.

Law enforcement is a practical, left-brain business of protocol and procedure. But a discussion of the Crown Vic brings out a romantic side. The traditions and symbols of life behind the badge become intertwined with its tools. Two tons of rear-wheel drive and a V-8 engine up front made for a machine that could feel safe at any speed, a reliable nonhuman partner when things got crazy.

I have flirted from time to time with the idea of purchasing a former cop car as a backup vehicle. (“It’s got a cop motor, a 440 cubic inch plant, it’s got cop tires, cop suspensions, cop shocks.”) Problem is, the state surplus store wants nearly $6K for used DPS cars; at that price, I could go get a used Miata or Outback instead.

The 1933 double eagle is on display at the New York Historical Society. I’ve written previously about the strange history of the 1933 double eagle, and the linked NYT article contains a good summary, too.

If you have nothing to hide, why do you object to being stopped and frisked by the police being recorded by a camera?

Yet another reason why Rosemary Lehmberg should resign.

Guess who’s getting a raise?

Thursday, July 18th, 2013

No, not your obedient servant.

The State of Texas has approved a $15,000 a year raise for all local DAs and district judges.

Including Rosemary Lehmberg.

Lehmberg is already the highest paid elected official in the county, making $125,000.00 per year in state funds. The county pays her $35,298 giving her a total salary of over $160,000.00.

From the legal beat.

Tuesday, June 11th, 2013

I have previously written about the strange case of Carolyn Barnes, the local lawyer who was accused of shooting at a census worker, sent to the state mental hospital (where she continued to represent at least one client) and was later ruled competent to stand trial.

Ms. Barnes was convicted yesterday of assault with a deadly weapon.

She could be sentenced to up to 20 years in jail, though I have serious doubts that she will be given that much time.

In other news, the Statesman is reporting that Governor Perry is threatening to withhold funding for the “state’s Austin-based ethics-enforcement unit” unless Travis County DA Rosemary Lehmberg resigns. As you may recall, Ms. Lehmberg was convicted of DWI back in April and sentenced to 45 days in jail.

I apologize that the link stinks. The Statesman‘s new paywall goes into effect today, and I have been unable to find a link to this story elsewhere. (Edited to add: Link? What link? Seriously, I griped about the Statesman link but forgot to actually include it. Here’s a story from the HouChron “Texas Politics” blog that reports the same thing: the HouChron blogger suggests that this is part of an effort to cut off “a criminal investigation into the Cancer Prevention and Research Institute of Texas”.)

I haven’t decided what I’m going to do about the Statesman yet. Paying for digital access would give me a tax write-off for Low Fat Heavy Industries. On the other hand, the cheapest subscription is $9.99 a month. I already subscribe to the NYT and LAT for you, my readers, and I find it hard to justify $10 a month for the Statesman.

Good time.

Thursday, May 9th, 2013

Travis County DA Rosemary Lehmberg is out of jail.

Lehmberg, who was sentenced April 19, served half of her jail term under a law that gives two days credit for every day served for good behavior.

(I think that’s pretty much SOP, but I Am Not A Lawyer. Just want to make it clear that I don’t think she got any special treatment.)

“In the coming days, Rosemary will be making arrangements to seek professional treatment and better understand her behavior,” the statement said. “She will also meet with members of her staff with whom she been communicating throughout the last 3 weeks.”

Letter from Travis County Jail.

Sunday, April 28th, 2013

Travis County DA Rosemary Lehmberg says she’s not going to run for re-election in 2016. She also says she plans to seek “professional help and guidance” once she’s released.

It may seem that I’ve been gloating about this case. I’m not. Truthfully, I feel bad for Ms. Lehmberg. I’m not an expert in substance abuse, but if she had blown a .09, I could chalk that up as the kind of mistake anyone could make. Driving around with a .239 BAC and an open bottle of vodka in the passenger seat makes me think there’s a problem. I respect Ms. Lehmberg for standing up and taking responsibility for her actions – including entering a guilty plea right away, rather than forcing a trial and all the conflicts that would result from her office prosecuting her. I think she’s doing the right thing by seeking professional help.

But I also feel that her actions have compromised the office. And as I’ve said before, the law is the law, and says she can be removed from office for intoxication. There’s no “good person” exception.

I hope Ms. Lehmberg gets help, and I hope she remains a respected member of the Travis County legal community. I hope she uses this experience to help other people in similar situations. But I believe she needs to do so as a defense lawyer, not as an elected prosecutor.

Radio silence.

Thursday, April 25th, 2013

There just hasn’t been much newsworthy in the past day or so. I’m having trouble working up energy to write about TMQ’s mock draft column (further proof that Easterbrook is more funny to himself than he is to real people). I’m also having trouble with the latest Travis County DA development:

More than 170 Texas attorneys filed a brief Thursday in support of jailed Travis County district attorney Rosemary Lehmberg.
Austin criminal defense attorney Betty Blackwell said that Lehmberg, who pleaded guilty Friday to driving while intoxicated, has received a harsh sentence of 45 days in jail, a $4,000 fine and a 180-day drivers license suspension.

“Hey, Rosemary? Betty. How are you doing?”
“Oh, I’m so glad to hear that. Listen, Rosemary, I need a favor.”
“Well, Rosemary, I’ve got this client…”
“Look, Rosemary, when you were in jail and needed a hand, I stood up for you. Now you’re not willing to help me out with a little deal here?”

This is exactly the kind of thing I was afraid was going to happen. And, you know, I’m not sure it makes a difference. The petition to remove Lehmberg is based on the law, and the law says you can get thrown out for being intoxicated. Lehmberg’s confessed to DWI. As far as I know, the law doesn’t say you can get thrown out for being intoxicated unless you get a bunch of your friends to testify about what a great person you are.

Anyway, instead of content, have a couple of photos.


This is the Austin skyline, facing south from the 27th floor observation deck of the Main Building at the University of Texas. (Yes, that observation deck.) Taken at 1/60 and f/22, with the Nikon 55-200 VR zoom at 55mm. Just to the right of the Capitol, you can see the Frost Bank Tower, or as some of us like to call it, “the nose hair clippers”.


This is the upper portion of the Capitol, taken at 1/30 and f/22 with the same zoom at 200mm, and cropped some in iPhoto.

Firings, obits, and other things: April 23, 2013.

Tuesday, April 23rd, 2013

Firings: Mike Dunlap, Charlotte Bobcats head coach. One season, 21-61.

Obits: Richie Havens. NYT. LAT. A/V Club.

E. L. Konigsburg, noted author (From the Mixed-up Files of Mrs. Basil E. Frankweiler). NYT. LAT.

This is one of those little tidbits that I find fascinating: “From the Mixed-Up Files…” won the Newbery Medal in 1968. That was Ms. Konigsburg’s second book. Her first book, Jennifer, Hecate, Macbeth, William McKinley, and Me, Elizabeth was the runner-up that year. (She won a second Newbery medal in 1997 for The View from Saturday.)

Mrs. Konigsburg, who spent a year teaching high school science, was an unabashed information-pusher. Children’s books, she once said, are “the key to the accumulated wisdom, wit, gossip, truth, myth, history, philosophy, and recipes for salting potatoes during the past 6,000 years of civilization.”

There will probably be more to say about this tomorrow, but Allan Arbus has also passed away.

In other news, while I was out and about having fun, Lawrence was working. Specifically, he’s been posting video of the Travis County DA being arrested for DWI, and of the DA in jail.

And what do I have to offer to compare with that? Pictures, maybe?


Here we see the elusive Mike the Musicologist. While Jim attempts to throw a net over him, let me tell you about Mutual of Omaha…

And one for my great and good friend Weer’d Beard: ducks!