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HCCLA files Southlawn Amicus

February 29, 2016 Leave a Comment

HCCLA, together with TCDLA and the Harris County Public Defender’s Office, has filed its amicus (friend of the court) brief in the Southlawn Gang Injunction case.

The Harris County County Attorney and District Attorney have sought to banish members of the Southlawn community from entering the area under the theory that they are protecting this area from gang activity. In short, the County has identified many individuals whom they seek to explicitly and permanently ban  from entering, remaining, appearing, sitting, walking, driving, bicycling, or being physically present within the “Southlawn Safety Zone.” This zone is just over 2 square miles.

While we recognize the County’s attempt to curb criminal activity within a particular area, this approach is offensive to the Constitution and effectively expels the named defendants from ever entering the area – whether for school, church, or to visit family.

Banishment, while used in medieval times, has never been authorized under Texas law. Banishment is the greatest form of punishment and should not be used as a civil remedy.

The full text of our amicus can be viewed and downloaded here:

Download (PDF, 210KB)

 

Thanks to the lawyers involved in this litigation for bringing this issue to our attention. And special thanks to Nicolas Hughes for his work in researching and writing on this issue.

For more information on the civil injunction case, Drew Wiley provides an overview.

See also, Texas Lawyer coverage

Filed Under: clients, constitution, justice, press release, Public Trust Tagged With: banishment, district attorney, Southlawn gang injunction

“Open Carry” NOT “Papers Please”

December 30, 2015 Leave a Comment

Having been made aware of District Attorney Devon Anderson’s advisory opinion to law enforcement officers [below], it appears the debate is alive and well. Whether or not a police officer may stop a citizen engaged in open carry to check for a license is a very real question.Your-Papers-Please-300x175

First and foremost, nothing in the open carry statute authorizes an officer to detain a citizen to determine if they have a license. The ability of a law-abiding citizen to lawfully open carry a handgun does not forego the right to be free from unreasonable searches and seizures.

While Ms. Anderson is correct that an officer may approach any individual in a consensual encounter, citizens are generally free to decline the encounter and walk away. The Supreme Court has consistently held that a person’s refusal to cooperate with a police request during a consensual encounter cannot, by itself, provide the basis for a detention.[i]

Her position that anything short of voluntary compliance with the officer’s inquiry should be reasonable suspicion to believe the person is illegally possessing the gun is perhaps too broad. Anderson cites Chiarini v. State for the proposition that courts have routinely permitted law enforcement officers to approach and detain those individuals observed to be in possession of a handgun. Recognizing that Chiarini was decided prior to the open carry law, we note that observation of a handgun may no longer carry the same connotation of illegal conduct.

There are three types of police-citizen inter-actions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. Such consensual encounters may be uncomfortable for a citizen, but they are not Fourth Amendment seizures. However, investigative detentions go beyond the consensual encounter and impact the Fourth Amendment rights of citizens.

Ms. Anderson’s position that declining the officer’s inquiry should be reasonable suspicion to justify an investigative detention discounts the necessity for reasonable suspicion. If declining an officer’s inquiry amounts to reasonable suspicion, then a citizen could never resist an officer’s inquiry. Consistent with Supreme Court opinions, an officer may only detain (stop) someone when the officer has specific, articulable, and individualized facts to make it reasonable to suspect that the person may be committing a crime.

In any event, if an officer does detain a citizen solely for engaging in open carry, that detention must be brief and limited to determining whether or not the citizen has a license to carry.

HCCLA will encourage lawyers to challenge the validity of any detention that fails to comply with the long established constitutional requirements governing the seizure of citizens. Though an officer may engage in a consensual encounter with any person regardless of their choice to open carry, nothing in the statute divests an otherwise law-abiding citizen of his or her constitutional rights. Generally, citizens may decline the consensual encounter and expect law enforcement to meet reasonable suspicion standards prior to their detention.

Much like a drivers license is required to legally operate a motor vehicle on our Texas roadways, a license is required to carry a handgun both openly and concealed. Law enforcement does not stop every vehicle operator to present his or her license. Why would they stop every open carry citizen?

Instead, it sounds as though Devon Anderson doesn’t support the Republican platform for open carry. While the Governor preaches liberty, Ms. Anderson wants to usher in an era of “papers please.” This is not what one expects in a free society. Ms. Anderson must accept that elections have consequences and the peoples elected legislature has spoken and approved open carry throughout Texas and Harris County.

____________________

[i] Wade v. State, 422 S.W.3d 661, 664-665 (Tex. Crim. App. 2013), citing Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (“[A] refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”); Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality op.) (a suspect’s refusal to listen or answer a police officer’s questions in a non-seizure circumstance “does not, without more, furnish” the officers with reasonable suspicion for a seizure.).

 

View and Download Devon Anderson’s Advisory Opinion Here

Download (PDF, 941KB)

Filed Under: constitution, police, politics, prosecutors, search and seizure Tagged With: constitution, Criminal Justice, devon anderson, district attorney, handguns, harris county, Harris County District Attorney, hccla, law enforcement, open carry

Will the Harris County District Attorney Accept Responsibility?

July 18, 2015 3 Comments

Our clients have problems.

Despite their denial, the Harris County District Attorney has problems as well.

They want our clients to accept responsibility. Will they as well?

In yet another instance, injustice and an appearance of impropriety permeates the Office of District Attorney for Harris County. Apparently, it seems the prosecutor and the bailiff engaged in a series of conversations and text messages about the jury. The importance of this is two-fold: (1) the bailiff, a Harris County Deputy Sheriff, is an officer and arm of the court who is the only person authorized to speak with jurors and (2) the prosecutor is an officer of the court who is forbidden from talking to the jurors. Granted, the prosecutor did not engage in direct communications with the jurors; however, she did attempt to communicate through the bailiff.

She texted the bailiff saying she wished she knew what the jury was thinking. The bailiff responded saying he would find out. THAT IS INAPPROPRIATE. There is no way to spin this so that any part of that conversation was proper and within the rules that require the court (via his bailiff) and the parties (via the prosecutor) to avoid the appearance of impropriety.

So what’s the big deal? Well, the thing is this is just one of many instances – all seemingly small – which cast doubt on the ability to have a fair trial in Harris County.

When will Devon Anderson accept responsibility? She didn’t in her response to our request about Dan Rizzo and the Alfred Brown case. She didn’t in an inquiry about prosecutor’s Connie Spence and Craig Goodhart threatening witnesses. She hasn’t in her media responses to the Kelly Siegler findings of prosecutorial misconduct. And, she hasn’t here. What will it take?

 

Filed Under: appearance of impropriety, honor, justice, police, politics, prosecutors, Public Trust Tagged With: alfred dwayne brown, appearance of impropriety, bailiff, cell phone, criminal defense, Criminal Justice, Dan Rizzo, devon anderson, district attorney, fair trial, fundamental fairness, harris county, Harris County District Attorney, harris county sheriff, hccla, honor, Improper Conduct, justice, kelly siegler, lawyers, perception, prosecutorial misconduct, prosecutors

Hollywood: Cold INjustice

July 11, 2015 Leave a Comment

Chronicle Editorial Hits Nail on the Head: Hollywood ending, A potentially innocent man sat behind bars so that a prosecutor could get on television.

“an awful lot of razzle dazzle for the serious business that goes down in criminal courtrooms”

Some prosecutors forget. Some never know it to begin with. But, criminal courtrooms are serious business. Life and liberty (for all) are at stake. Criminal courtrooms mean much more than their civil counterparts who fight over money.

It is interesting that most people do not care about the criminal justice justice system; most do not care if rights are trampled; most have no idea innocent people can be convicted; until it happens to them or a family member.

For over 21 years, Kelly Siegler (a Harris County Assistant District Attorney) played fast and loose with the rules. She used the courtroom as her stage for theatrics. Yes, she was aggressive, and that’s ok, as long as it is fair. Hiding evidence is not fair. Subpoenaing witnesses under a different case to hide the witness is not fair. Lying to the court is not fair. Interfering with public information requests is not fair. Continuing to hide evidence long after you no longer work as a prosecutor is not fair.

Just as there are bad influences in every profession, Kelly has marred the reputation of prosecutors, even those who do seek justice. It’s easy to be fair. A web of lies and deceit do nothing for our system of justice, except create injustice.

Filed Under: honor, jail, justice, politics, prosecutors, Public Trust, Reasonable Doubt Tagged With: cold justice, criminal defense, devon anderson, dick deguerin, district attorney, harris county, Harris County District Attorney, hccla, honor, Improper Conduct, injustice, justice, kelly siegler, lawyers

McSpadden Battles Jail Overcrowding

July 9, 2015 1 Comment

Today, Senior District Court Judge Michael McSpadden shared his thoughts with Senator John Whitmire regarding jail overcrowding.

While we do not always agree on each issue, we applaud Judge McSpadden for his efforts in pushing for reduction in low-level drug offenses which would clearly have a major impact on our local jail overcrowding. Rather than shipping inmates out of county for holding, pending court (meaning they have not been convicted of anything), had the legislature reduced the “trace” cocaine cases to misdemeanor class C offenses, a substantial portion of those awaiting trial would be released so that courts, law enforcement, and prosecutors could focus on more serious offenses and more violent offenders. Additionally, barring a legislative change, elected District Attorney Devon Anderson could exercise her prosecutorial discretion to serve the same purpose.

Jail overcrowding is a problem. It must be fixed. Shipping inmates around the state for housing is not the answer.

Thanks to Judge McSpadden for at least attacking the problem and offering viable solutions. Read Judge McSpadden’s correspondence here:

 

Download (PDF, 80KB)

Filed Under: incarceration, jail, justice, politics, prosecutors, Public Trust Tagged With: devon anderson, district attorney, harris county, Harris County District Attorney, harris county sheriff, jail overcrowding, overcriminalization, pretrial detainees, ron hickman, senator john whitmire, trace cocaine cases

Alfred Brown Unresolved Matters

June 12, 2015 Leave a Comment

In a letter to Hon. Devon Anderson, Harris County District Attorney, HCCLA calls for action on unresolved matters related to the Alfred Brown prosecution.

As you may be aware, our District Attorney has announced the dismissal of charges against Alfred Brown as being unable to prove their case beyond a reasonable doubt. This dismissal comes after the discovery of exculpatory evidence (tending to corroborate Brown’s alibi), the exposure of improper grand jury badgering of Brown’s alibi witness (Ericka Dockery), and recanting witnesses.

In case you missed it, Lisa Falkenberg (Houston Chronicle) was awarded the Pulitzer Prize for her coverage of this grand jury behavior. Her spotlight on this issue also led to grand jury reform in this year’s legislative session! (Read some more about grand jury reform and the District Attorney’s Office here)

We now call upon the Office of District Attorney to continue the inquiry into the conduct surrounding the initial investigation and prosecution of Alfred Brown and the prosecution of Ericka Dockery, specifically focusing upon potential criminal offenses and unethical conduct by Brown’s lead prosecutor, Dan Rizzo.

Our letter to Devon Anderson can be viewed and downloaded here:

Download (PDF, 2.56MB)

Filed Under: honor, incarceration, jail, justice, politics, press release, Public Trust Tagged With: alfred brown, criminal conduct, devon anderson, district attorney, ericka dockery, grand jury reform, harris county, lisa falkenberg, public inquiry, reform, restore public trust, unethical behavior

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