Archive for the ‘Law’ Category

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”.)

You’re going down in flames, you tax-fattened hyena! (#37 in a series)

Wednesday, March 22nd, 2017

The district attorney of Philadelphia, Seth Williams, was indicted yesterday.

A 50-page, 23-count indictment accused Mr. Williams of accepting lavish gifts — including trips to a Dominican resort, Burberry accessories, checks for thousands of dollars and a custom sofa worth $3,212 — from businessmen for whom he was willing to do favors. The indictment also accused Mr. Williams of diverting money from a relative’s pension and Social Security for his personal use.

Philly.com reports that relative was his mother.

He also gave Williams his old 1997 Jaguar XK8 convertible worth $4,160, the indictment says.

No wonder Williams was “cash-strapped”. What do you think the repair bills are on a 20-year-old Jaguar?

He has complained of his inability to pay alimony stemming from a 2011 divorce and private-school tuition for his daughters, despite his salary of $175,572 a year.
In January, the Philadelphia Board of Ethics assessed the largest fine in its 10-year history for Williams’ failure to report for years more than $175,000 in gifts he had accepted including a new roof, luxury vacations, Eagles sidelines passes, and use of a defense attorney’s home in Florida.

I don’t see any evidence of hookers or blow yet. However, Philly.com does mention that hr was known to hang out in cigar bars; that seems to have replaced call girls and Bolivian marching powder in the affections of many corrupt politicians these days. I really ought to start keeping a tally.

True crime notes.

Monday, March 20th, 2017

I don’t want to seem like I’m making light of this story: it’s awful, and I hope the victims are able to achieve some level of peace.

But when you see a headline like

Vegas jury convicts War Machine of 29 counts

on the Entertainment and Sports Programming Network’s website, it gets your attention.

“War Machine”, in this case, is Jonathan Paul Koppenhaver.

Koppenhaver went by his birth name during the two-week trial but had legally changed it to War Machine during his 19-fight MMA career.

The jury deadlocked on attempted murder charges, but found him guilty of the other crimes. It isn’t clear to me if those include the eight counts of “domestic battery” that his lawyer conceded to.

He could face up to life in prison.

And I hope he does every damn day of it.

[The female victim – DB] testified that Koppenhaver attacked her after [the male victim – DB] left. The jury saw photos of [the female victim] with a broken nose, missing teeth, fractured eye socket and leg injuries. She also suffered a lacerated liver.

In other words, he beat the shit out of them both. But he apparently reserved special attention for her.

[The female victim] said she fled her home and ran bleeding to neighbors when Koppenhaver went to the kitchen to fetch a knife.

He has been serving a 1½- to four-year sentence for violating his probation on a 2009 conviction for attempted battery involving a 21-year-old woman.

===

On what I hope is at least a slightly less depressing note, here’s something I stumbled across in my reading over the weekend, but haven’t had time to dig into in depth: Taylorology. This apparently started out as a zine in the old pre-Internet/”Factsheet Five” days, but eventually migrated online.

What’s it all about? Quoting the introduction:

TAYLOROLOGY is a newsletter focusing on the life and death of William Desmond Taylor, a top Paramount film director in early Hollywood who was shot to death on February 1, 1922. His unsolved murder was one of Hollywood’s major scandals. This newsletter will deal with: (a) The facts of Taylor’s life; (b) The facts and rumors of Taylor’s murder; (c) The impact of the Taylor murder on Hollywood and the nation; (d) Taylor’s associates and the Hollywood silent film industry in which Taylor worked. Primary emphasis will be given on reprinting, referencing and analyzing source material, and sifting it for accuracy.

The Taylor murder is one of those great unsolved Hollywood mysteries that everyone seems to have a theory about; some of those theories may even have an element of truth to them. Bruce Long, who runs Taylorology, has collected a great deal of archival material related to the Taylor case. And he’s a man after my own heart: he mentions in the biographical information on his site that he first became interested in the case when he was nine.

When I have some spare time (mumble years from now, the way things are going) I’d like to dig deeper into this site. One thing I can give Mr. Long credit for: he’s steered me away from purchasing one of the more famous books on the case. (Actually, I stumbled across Taylorology by reading another book on the case that references the website. Apologies for being elliptical, but I may do a brief review of the second book in the near future.)

Quick update.

Saturday, March 18th, 2017

The guy who killed two people and injured a third near Lakeway?

Randall Burrows, 54, shot himself in the head just outside of Summit, Miss., after a short chase with Mississippi highway patrol, Travis County sheriff’s officials said. He was taken to a hospital, and he was pronounced dead soon after 5 p.m., roughly 15 minutes after the U.S. Marshals had found him and the chase began, Travis County sheriff’s Capt. Craig Smith said.

Memo from the police beat.

Thursday, March 16th, 2017

The past few days have been busy ones for law enforcement in and around Austin, and not just because of South By So What. Here’s a quick survey of some things that I’ve found interesting.

There’s a new plan for the APD DNA lab: get Texas DPS to run it.

Under a proposed contract, the city of Austin will pay the Texas Department of Public Safety $800,000 a year to manage all aspects of the lab, including procedures for analyzing forensic evidence and the oversight of employees hired by the DPS to work there.
The newly named Department of Public Safety Capital Area Regional Lab will focus exclusively on Austin police cases, Assistant Police Chief Troy Gay said.

I suppose this is better than nothing, or the current state of affairs. And $800,000 sounds like a reasonable amount of money if the new management from DPS is going to fix all the problems and claw through the backlog. But I still think we’d be better off with an independent lab like Houston’s, or making the existing lab am arm of the courts.

Speaking of the DNA lab, here’s a story I haven’t seen reported anywhere else:

In the first legislation of its kind, the lawmaker, State Representative Victoria Neave, a Democrat from Dallas, introduced the bill in February to solicit donations of $1 or more from people when they renew or apply for driver’s licenses. The money would underwrite a grant for the Department of Public Safety to test what are commonly called “rape kits,” which consist of evidence samples including hair, semen, fabric fibers and skin cells.

(Note that the paper of record characterizes this as “crowdfunding”, which I find a bit misleading.)

If adopted, it could generate an estimated $1 million a year, based on similar donations collected for veterans from driver’s license applications, according to a legislative budget document. When administrative costs are deducted, that would leave more than $800,000 every fiscal year that local governments could tap to push through testing of evidence collected from the victims of sexual assault during a physical examination that can take four to six hours.

Where have I heard $800,000 recently? Oh, yeah.

The donations are intended to supplement rather than replace a budget for the testing, which can cost $1,000 to $1,500 for each kit. The Legislature, which is now in budget talks, is also considering allocating $4 million to fund the process, said Rebecca Acuna, Ms. Neave’s chief of staff.

You know what I’d really like to see? A breakdown of where that “$1,000 to $1,500 for each kit” goes. I’m not against rape kit testing – quite the opposite – but I’m curious why it costs that much. I’m also curious if this cost has increased or decreased over time, with improved technology. And are there possibly better, faster, and cheaper ways of testing rape kits without sacrificing accuracy?

Two people shot and killed last night, and a third airlifted with “critical, life-threatening” injuries.

If you look at the Stateman‘s handy Google map, you’ll see this took place not terribly far from the Lake Travis High School/Education Center complex. My mother and I were down there last night with a bunch of other people….attending the Lakeway Police Department’s Citzens Police Academy class. As a matter of fact, right around the time of the shooting, we were out in the parking lot looking at the Lakeway PD patrol cars (Chevy Tahoes. This led someone to ask, “Why the switch to SUVs?” I suspect most of my readers know the answer already, but in case you don’t: “Because Ford stopped making the Crown Vic, the greatest patrol car ever given to us by God.”) and the Lakeway PD police motorcycles (Harley Davidsons). I don’t recall hearing any shots or even the Starflight helicopter.

Even better, we had just finished listening to a presentation from one of the people who does the Lakeway PD statistical analysis about how safe Lakeway was, how many calls for service/stops/arrests there were year to year, and what the major categories were. “Homicide” didn’t even register. (Technically, it’s probably still true that Lakeway is relatively safe, even though the shooter is at large: I believe the shooting happened near, but outside of, the Lakeway city limits, so it would be chalked up as “unincorporated Travis County”.)

The first we knew about it was when we were breaking up for the night: the second in command of the department (who also runs the classes, and who usually jokes around a lot) came in and said “I want everyone to listen to me very closely. Two people have been shot near here and the shooter is still at large. We are going to walk everyone to the parking lot and make sure you all get into your cars safely. I need for you to leave the area as quickly as you possibly can.” That will put some spring in your step.

Reports are that this was “an isolated incident”, possibly a “disgruntled contractor” who shot these people because he didn’t get paid. Which is just stupid: if you shoot people, they can’t pay you.

And speaking of the Lakeway CPA, for reasons: a interesting and contrarian point of view from Grits For Breakfast in opposition to a statewide ban on “texting and driving”.

Flaming hyenas watch.

Thursday, March 16th, 2017

The LAT has gotten really obnoxious about viewing articles on their site with ad-blockers enabled (or disabled) so I haven’t been keeping up as well as I should with goings-on in the banana republic of California.

For example, I totally missed that Lee Baca was being re-tried. (You may remember his first trial ended in a mistrial.)

And even better:

Lee Baca, the once powerful and popular sheriff of Los Angeles County, was found guilty Wednesday of obstructing a federal investigation into abuses in county jails and lying to cover up the interference.

Let me just remind folks:

To get to Baca, prosecutors methodically worked their way up the ranks of a group of sheriff’s officials who were accused of conceiving and carrying out a scheme to impede the FBI jail inquiry. In all, 10 people — from low-level deputies to Baca and his former second in command — have been convicted or pleaded guilty. Several other deputies have been found guilty of civil rights violations for beating inmates and a visitor in the jails.

Dumber than a bag of hair. But I digress. The NYT claims he “could face up to 20 years in federal prison”. As we all know, claims like this should be taken on good quality rice with some soy sauce and wasabi. My totally outsider speculation, as someone who isn’t a lawyer and hasn’t practiced in federal court: I’ll be surprised if Baca gets any prison time, given his age and alleged Alzheimer’s. I expect a long probated sentence.

Welles. Welles Welles Welles. Welles.

Wednesday, March 15th, 2017

Netflix has signed on to help complete and release “The Other Side of the Wind”, Orson Welles’ legendary last and unfinished film.

I do want to see this, even though I don’t have Netflix (and won’t pay for it just for this). I have a pretty strong suspicion that this is…not going to be good. But hey, Welles! (What I’m really hoping for is a Criterion package like they did for “F Is For Fake”.)

(And can someone explain to me why I keep confusing “The Other Side of the Wind” with The Wind Done Gone?)

Other unrelated stuff:

By way of Lawrence, follow-up on Captain Bill Dowling and his funeral. (Previously.)

“He was a mean son-of-a-buck, but very tender-hearted … and very competitive,” John Dowling said Tuesday of his older brother. “He made the best out of it. He didn’t get sour, he didn’t get upset. The life lesson he could teach the world – no matter what your situation, you can choose to be happy.”

From the WP: a summary of the players in the “Fat Leonard” scandal, including the eight recent indictments.

Edited to add: One other minor follow-up that I forgot to add: the NYT obit for Mother Divine. I don’t think it adds much over the WP obit, but I did want to note it for the historical record.

Obit watch: March 8, 2017.

Wednesday, March 8th, 2017

Lynne Stewart.

Quoting the NYT obit:

…a radical-leftist lawyer who gained wide notice for representing violent, self-described revolutionaries and who spent four years in prison herself, convicted of aiding terrorism..

,,,

Ms. Stewart was convicted in 2005 of helping to smuggle messages from the imprisoned sheikh [Sheikh Omar Abdel Rahman – DB] to his violent followers in Egypt. Her prison sentence, initially set at 28 months, was later increased to 10 years after an appeals court ordered the trial judge to consider a longer term.

,,,

Ms. Stewart, who had been treated for breast cancer before entering prison, was granted a “compassionate release” in January 2014 after the cancer had spread and was deemed terminal. Doctors at the time gave her 18 months to live.

Ms. Stewart’s critics and supporters did agree on one point about her 30-year career, which ended in disbarment with her conviction: Like William M. Kunstler and other lawyers who were proud to be called radical leftists, Ms. Stewart sympathized with the causes of violent clients who deemed themselves revolutionaries in America.

Some of her other clients included Weather Underground member David J. Gilbert, “convicted of murder and robbery in the 1981 Brink’s armored car robbery in Rockland County, N.Y., in which two police officers and a Brink’s guard were killed”, Richard C. Williams, “convicted of killing a New Jersey state trooper and setting off bombs at military centers and corporate offices in the early 1980s”, and the infamous drug dealer Larry Davis.

You’re going down in flames, you tax-fattened hyena! (#36 in a series)

Wednesday, March 8th, 2017

Jose Torres, the mayor of Patterson, New Jersey, has been indicted on corruption charges.

Three public works supervisors have also been indicted with Mayor Torres. Allegedly, the mayor “asked public employees to work on personal projects while they were being paid by the city”.

Worthy of note 1: various online sources show that Mayor Torres is a member of Criminal Mayors Against Lawful Gun Ownership.

Worthy of note 2: Mayor Torres is the second criminal mayor to face charges this week. SayUncle linked to a report that Mayor Anthony Silva of the (formerly) bankrupt city of Stockton has been arrested again: this time, he’s charged with “money laundering, embezzlement by a public officer, grand theft and embezzlement worth more than $400”.

It’s Baltimore, gentlemen.

Friday, March 3rd, 2017

The gods will not pay your overtime when you’re sitting on the beach.

A federal judge ordered Thursday that six Baltimore police officers be held in jail pending their trial on racketeering charges, saying no conditions of release were sufficient to ensure public safety.

There are actually seven officers who have been indicted.

Federal prosecutors in the office of U.S. Attorney for Maryland Rod J. Rosenstein allege that the officers, all members of an elite unit tasked with getting guns off the streets [Emphasis added – DB], robbed Baltimore residents, fabricated court documents and filed fraudulent overtime claims. Gondo also is accused in a separate case of being involved in and assisting an illegal drug organization.

According to this report, “some” of the officers were members of “the elite Gun Trace Task Force”.

As first reported by the Baltimore Sun, several of the officers were also highly praised in the October 2016 Baltimore Police newsletter in an article written by Lt. Chris O’Ree, a member of the ATF taskforce.
“I am extremely proud to showcase the work of Sergeant Wayne Jenkins and the Gun Trace Task Force,” O’Ree wrote. “Sergeant Jenkins and his team have 110 arrests for handgun violations and seized 132 illegal handguns.” He added, “I couldn’t be more proud of the strong work of this team.”

How elite were they?

In one case, four of the officers are alleged to have stolen $200,000 from a safe and bags and a watch valued at $4,000. In July 2016, three officers conspired to impersonate a federal officer in order to steal $20,000 in cash.

Also, I’m sorry, but if you are a police officer, your nickname should not be “GMoney”.

We need a Class D fire extinguisher.

Thursday, March 2nd, 2017

Flaming hyenas update, for the record:

A federal judge on Thursday dismissed, for a second and final time, a lawsuit by the U.S. Securities and Exchange Commission that accused Texas Attorney General Ken Paxton of securities fraud in private business deals in 2011.

(Warning: auto-play video.)

(Previously.)

I thought the criminal case against AG Paxton had been dismissed and I just forgot to note it. But, according to the linked Statesnan article, that’s still on track to start May 1st.

Obit watch: February 27, 2017.

Monday, February 27th, 2017

Judge Joseph A. Wapner, of the Los Angeles Coun6y Superior Court. NYT.

During World War II, he served with the Army in the Pacific and was wounded by sniper fire on Cebu Island in the Philippines, leaving him with shrapnel in his left foot. He won the Purple Heart and the Bronze Star for his bravery and was honorably discharged in 1945.

Of course, he’s better known to those of us in the older set as the first judge of “The People’s Court”.

For the record: Bill Paxton. A/V Club.