DWI, The good, bad and ugly.
Posted by: Ed Chernoff
November 09, 2007

I would like to take a short break from the Brownsville report to discuss other matters. I just got back from a conference in Las Vegas, where I was able to study the newest techniques in DWI defense. I wasn't much impressed. Generally speaking, the entirety of the DWI bar seems shocked - shocked - to find out that juries on a national scale are becoming much less likely to acquit in Driving While Intoxicated prosecutions.

Why should anyone be surprised? For the last 25 years there has been an information onslaught from MADD and other organizations, and frankly, much of the information has been misleading. Oft time potential jurors come to court believing that an accused person is guilty if there is evidence that the person consumed any amount of alcohol prior to driving. That isn't the law, of course, but its no wonder jurors are confused considering the contrary information they receive.

During jury selection, I usually discuss the highway signs that inevitably pop up around Christmas time. They read, in the boldest print possible: "Drink. Drive. Go to Jail." I ask the people in the jury pool if they see anything wrong with that particular warning. Despite the clear mischaracterization of the law, very rarely will someone raise his hand.

Unfortunately, many of our clients are arrested based on that one misguided premise. The art of DWI traffic arrests has been "elevated" to a science with the acceptance of Standardized Field Sobriety Testing, but the reality on the street is that an arrest is still only based on the opinion of the officer who makes the stop. How someone performs on one leg is necessarily a subjective evaluation and if the officer's job is to make drunken driving arrests, as is typical with members of the DWI task force, he will err on the side of probable cause.

Money and politics have fueled increased arrests and prosecutions for "drunk" drivers. Politicos like easy issues, and who could argue against poor mothers who have lost children in automobile accidents? Federal money is given to a municipality who is willing to create a task force designed to arrest intoxicated drivers, and what city is going to forego federal funds? Conversely, why would the feds continue to fund such a force unless it produced stats to justify its existence? And so it goes.

One outgrowth of this increased prosecution is the enormous defense industry created to combat the government. This was abundantly evident in Vegas. For every session devoted to defense techniques, another was offered regarding the business and marketing of DWI defense. In fact, the largest contributor to the seminar appeared to be a DWI internet business, whose moniker was plastered everywhere in the auditorium.

Heaven knows I am not opposed to marketing for lawyers! It is absolutely vital in this day, both for the lawyer and the accused citizen. Most citizens arrested for DWI have never been arrested for anything in their lives and have no idea whom to hire. Without some means for them to obtain information about the lawyers in their community, it would be nearly impossible for them to make a reasonable selection. Most individuals in that position still hire based on referrals, but the Internet is catching up, mainly because of its unique ability to disseminate large amounts of information.

However, there is a danger in print media, whether in the phone book, direct mail or the Internet. It pains me to say this, but not everything written is the absolute truth. DWI defense is a good business in that many accused of that crime have money and are more agreeable to work with than those charged with more egregious crimes. Many lawyers, who claim to "specialize" in DWI law, have in reality only "decided" to limit their practice to DWI defense and have marketed accordingly.

If you log on to the marketing site that sponsored the Vegas seminar, it states in its legal disclaimer that it markets only one lawyer in any particular county. It further makes clear that the marketing site is only a paid advertisement and makes no endorsement or claim with regard to any of the attorneys listed. So what criteria does the site go by in determining what lawyers to advertise? Is the decision on who to advertise based solely on financial considerations?

Lord, I hope not! People need help out there. Normally, when someone calls the firm asking for help on a DWI case, I tell him or her the same thing. Treat your search for a lawyer with the same care you would use in searching for a job or a spouse. Hopefully that would involve an interview with more than one prospective! Don't hire on the phone. Don't be afraid to ask specific questions regarding experience and expertise. And trust your instincts. A flashy website - even our flashy website - should be the start of your inquiry, not the finale. Get it right the first time. Switching lawyers later can result in one heck of a messy and costly divorce.

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Human Problem
Posted by: Ed Chernoff
June 27, 2007

All seven of us sat in Federal Court in Brownsville, Texas; Defense attorneys for the damned. There was Grumpy, in his rumpled suit, the freckled naked circle of skin on the top of his head gleaming in the flourescent light. He had a contrary attitude, disagreeing to be disagreeable, arguing to be arguable and disputing in the end that he was ever that way at all. There were a couple of Sleepy's, starting the day as merely Dopeys, and then sinking under the weight of boredom and irrelevency. On down the line, we had it all. I guess you could say I was Sneezy, allergic as I am to sheer stupidity. Notable missing, however, was Happy.

Among other things, the Government says our clients were part of an enterprise that distributed tons of cocaine across the border of Mexico into the interior of the U.S. We have been told that the Government has so much evidence that even the phone logs would reach eight feet into the air. (No kidding, that was reported in their trial memorandum.) The Government team consists of various FBI agents, DEA agents and IRS agents, along with two experienced lawyers and paralegals. They assure us that there are a number of unindicted co-conspirators and other co-actors just chomping at the bit to sit up on the witness stand and point their accusatory fingers at our clients. In response to that bluster, came a blizzard of paper from the defense designed ostensibly to limit the horrible onslaught of evidence about to be thrust like daggers into the hearts of our clients.

Ok, so maybe I'm being dramatic, but the interaction we've had with our Government foes does seem a little too much like a play. I can't speak for the other Defense Attorneys, but every time Matt or I go to court on this case, it is implied that we are wasting our time, and we are always approached about pleading. I have to wonder why. We have been very clear from the beginning that we intend to try this case, and nothing we have seen so far has changed our opinion of our client's chances.

No doubt, it "looks" bad. It seems the entirety of our client's family has been involved in the drug trafficking trade. But... if we are to be judged only by our family's flaws, then let me apologize to my brother Anthony right now. (I assure you Bro, I never intended to get you indicted for conspiracy to commit intimacy avoidance, or aiding and abetting the substantive offense of alter abandonment.) Curiously, months into the case, the Government hasn't seen fit to show us what evidence directly links our client to the drug trade.

We aren't cowboys at Stradley, Chernoff & Alford LLP. We don't try cases for the experience. If the case warrants mitigation of damages, we artfully settle. But we don't fold our hand out of fear. We deal in Human problems, not legal ones. We are hired to stand before the Government and protect our clients. In our office, we have a famous photo of a student at Tianamen Square standing in front of a tank. He is holding a brief case. You've probably seen it. We have that photo for a reason. It reminds us of two things: Courage over tyranny, and...never take a knife into a gun fight!

So far though, it looks a whole lot like knife on knife. The nature of the government is to offer deals to co-defendants to testify against their breathern. It may be that by the time the jury panel is brought in, we are the only one left at the defense table. So be it. We've had to deal with that before. That's probably why we were hired. Our client professes his innocence and under the circumstances, that's good enough for us. If circumstances change, so shall we. However, right now we are gearing up for battle. One of the co-defendants has already expressed his intention to plead. His attorney assured us that his client had no deal to testify, and further added that the Assistant US Attorney on the case had never lost a trial. I was going to respond, but Matt interjected first. He said, "Well this victory ought to be even more glorious!" What was I going to add to that?

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Trial means never having to say your sorry!
Posted by: Ed Chernoff
May 30, 2007

The last jury trial the firm was involved in ended last week. It was in Belinda Hill's court. Bill and Matt both defended. The client was charged with Aggravated Sexual Assault of a Child. The jury hung up 8-4, favoring an acquittal. They just couldn't decide. The offer prior to trial was five years TDC.

Our client was a professional, with good friends, no record and burdened with the unfortunate decision to marry a woman with kids. After the mistrial, the prosecutor offered a five year deferred on an Indecency, with no jail time - substantially less onerous than the five years aggravated time she had dangled before trial. Our client, perhaps realizing he had stared prison in the face, decided to take it. And so the case ended in a whimper, rather than a roar.

Funny thing about the trial. The foreman of the jury had been on one of our jurys before. Bill and I tried an Aggravated Sexual Assault case in Judge Poe's court a few years ago. That jury hung up as well, and the case was eventually dismissed. The foreman of this jury was a member of that jury. When the question was asked in this case if anyone in the panel knew Bill or Matt, this potential juror reported that he recognized Matt as a lawyer in another case he had sat on as a juror. He added that he thought he recognized Bill as the other lawyer in that case. (This juror apparantly confused Matt with me, a fact that I personally believed pleased Matt to no end!)

We knew what had happened in the previous case, so naturally we didn't strike him. The prosecutor never asked him if his fellow jury members had reached a verdict, so armed only with presumptions, she allowed him to make the jury. Interviews after the trial showed him to be one of our strongest allies. What are the odds?

A little bit of an update on a previous post: Willie, no doubt disappointed in how I had handled his last gift of a live dove, deposited a dove with no head in my dining room this morning. If he could talk, I'm sure he would have said, "Here you go dumb-fuck, try and set this one free!"

Another interesting tidbit. i came in to work this morning at my usual time, 7:30am. Alan and Aggie were already in their seats. I went back to get some coffee, but none had been made. i asked Aggie for the info. Alan walked out of his office to join in the conversation. Aggie lamented that we had run out of coffee. Alan joined in her misery. He said, "I really needed some caffeine this morning! This was not a good day to run out. I wish there was some grocery store near by so that we could load up. God, I need coffee right now!" I looked at them with bleary eyes and shook my head in disbelief. I said nothing. I walked out the door of the office, went down one flight of stairs, pushed open the door to the building, made a right turn and after walking twenty feet down the sidewalk, entered the Starbucks that resided under my office. I ordered a grande red-eye and a pound of coffee. As I waited on my order, I strongly considered our hiring policy.

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Willie the Cat
Posted by: Ed Chernoff
May 22, 2007

            On Sunday I got "The Question" again. My neighbor came over while I was putting up some outdoor lighting. She had a friend in tow, who had traveled from Los Angeles for a visit. We drank the few beers I had in my fridge and talked. Eventually the conversation turned to my job, and after several stories my neighbor's friend asked me "The Question". Usually I throw out one of my canned responses, but maybe I was tired, because all I said was, "Hey, it's what I do." She seemed genuinely perplexed.

            What can you say to explain a job that not one person out of a thousand understands? Almost nobody expects they will need a criminal defense attorney, so they are free to judge the ethics and morals of the lawyer who chooses to make that his specialty. Defense attorneys are expected to be flawed, crooked or worse. That's why they make such good characters in the movies.

            In my younger days when I was asked how I was able to represent someone I knew was guilty, I would answer with rancor, which usually ended the conversation. I have mellowed. Now, I explain to them that I don't see my clients in black and white. All of them come to me with problems and life circumstances in shades of gray, and it is my job to make their lives better. Still, that explanation doesn't satisfy everybody. What about the client who approaches the dark side of the spectrum? How about the murderer?

            Today my client, pale and shaken, his wrists and ankles shackled together asked me what the difference was between a life sentence for Murder and a life sentence for Capital Murder. He is 22 years old, barely five feet five inches and 130 pounds. While we talked, his eyes darted back and forth as if he were expecting a bullet at any moment. We sat in the jury box, while court was in session. He was surrounded by three Ft. Bend deputies. Downstairs, at the exit doors, more deputies kept guard.

            Lately he has been shuffled back and forth from the Fort Bend District Court to a jail cell in Liberty County. The sheriff's answer for why he was being housed in Liberty County, was safety. My client asked if there was any way he could be moved into the Ft. Bend Jail. I told him that I could file a motion, but that his housing situation was for his own protection. He looked down and said, "I don't feel protected."  For a split second, I thought about my cat.

            My cat Willie, has lately been paying his rent. I don't allow him inside, because I don't want the mess. Actually, I don't like cats, but I didn't pick Willie. He picked me. He showed up at my door one day, after his owner, my next door neighbor moved a block away. Apparently Willie didn't like that block. I called my old neighbor and advised him of the situation. He asked me to watch him for awhile until the family became settled and Willie could become acclimated. I assumed he meant a couple of days, so I agreed. I didn't have any cat food, so I started feeding him tuna. Willie never left.

            Perhaps out of gratitude for the tuna, he has been bringing me presents. The day I ran the marathon, he left me a dead baby bird, shell and all. It was waiting for me on the front porch when I came back from the race. Since then it has been a parade of dead squirrels, mice and birds. Almost always, the kill is only half eaten, as if Willie is paying me tribute.

            This last Saturday morning, the weather was perfect. A rare cool front had blown in. I sat on the back deck smoking a cigar and reading the newspaper, when I saw Willie walk through the back door I had inadvertently left open. In his mouth was a dove. I followed and watched him lay the dove down in the living room at the foot of my fireplace. I bent down to get a closer look. I was surprised to see the dove was alive. He didn't move a muscle below his neck, as if his body had been duct taped, but his eyes darted back and forth and his head turned spasmodically.

            I picked up the bird with one hand. Still his body didn't move. I guessed that Willie had crippled the bird during the hunt. I carried it out into the back yard, trying to decide what to do. I supposed that it would only be fair to throw it out into the back yard for Willie to enjoy. It was his hunt, after all.  Not wanting the bird to suffer, I decided to kill it first. I laid it down on the deck, with the intention of getting a hammer to finish the job. As I released it, I was shocked to see it fly away! I hadn't any experience with doves, so I hadn't considered that it might only be paralyzed with fear. Willie watched it go, and then looked up at me with what I perceived to be pity.

            It was that moment I thought of as I sat next to my client. In the background the Judge was admonishing someone for not coming to court without a lawyer, but the cameras, law enforcement and audience eyes were firmly fixed on my client, almost as if they expected him to run away at any moment. I said goodbye. I told him that I would come and see him the next week to discuss trial strategy. For the first time that afternoon, he looked me in the eyes. He delayed for a moment, searching for the right thing to say. Finally, he said simply, "Thank you for everything, Mr. Chernoff." As I walked out, I turned to see him again. He sat perfectly still, his eyes squinting at the lights in the courtroom, almost like a bird.  

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Bill Had Good Week
Posted by: Ed Chernoff
May 04, 2007

Despite the gravity that is weighing everybody down in the office, Bill's having a good week. He tried a DWI on Teusday and Wednesday. He doesn't do alot of those, but it was a client that he had represented formerly, and had developed a relationship. Actually, the prior case was a DWI also. Bill got it dismissed and afterwards suggested that the client have the case expunged. Naturally he didn't, so when he was arrested again for DWI, the prior dismissal showed up on his record, ruining any reasonable discussion Bill could have had for another dismissal. So he did the only thing left to do, he tried it and won. Hopefully the client will take his expunction suggestion seriously this time.

On Thursday, Bill tried a theft case. It involved a sting operation the City had been employing lately to catch scrap metal dealers buying stolen construction materials. It was a case the state should have disimissed. The whole transaction was on tape. Bill played the tape for everybody in the firm, and we all agreed there was no clear statement from the undercover officer that the materials he ws hawking were stolen. At one point he made some vague statement about getting the air conditioning coils from his work, but that was about it. On cross, Bill solidified the point, and the jury hung three and three. The State had had enough at that point and dismissed.

One aquittal and one dismissal after a hung jury, all in one week! Not bad, even by Bill's standards. He had another trial set on Friday, but the Judge decided to move it to the following Monday. (Good luck getting a Judge to pick a jury on Friday. About the only Judge I can think of that will do that is Belinda Hill. By the way, gratuitous high fives to the two best District Judges in the firm's humble opinion: Belinda Hill and Mark Carter.) So to continue... Bill is approached by the prosecutor who asks him why he is trying the case. Bill tells her his client is innocent. She has the nerve to tell him that she might dismiss if she tells him why her case is flawed. Now understand, this woman is maybe 24 years old with 10 trials under her garter belt and a year and a half in the DA's office. Bill tells her that she's a liar, albeit in a milder, less Matt Alford way. He tells her that she, like everyone else in the DA's office, is chicken shit afraid to dismiss anything. He tells her that the culture in the office won't permit a dismissal, even if clearly warranted, even if justice demands, even if the office is going to embarass itself. Bill tells this kid that she will see the evidence when he presents it, and then walked out.

Matt made almost the same statement to a prosecutor two weeks earlier. The firm represented a man accused of assaulting his male lover, in bed. The 911 tape heard the "victim" complain in a calm robatic manner, that his "husband" was beating him. When the police came, they found blood on the bed and a cut on the victim's nose. The police made a point of noting in the offense report that there were marks on the victim's neck. Hmmm. When the prosecutor told Matt that there was blood found on the bed, Matt reproached the prosecutor, "Do you really want to go there?" Apparently so. Matt was forced to pick a jury. The victim was unserved and out of the country, and Matt was able to keep the statements made to the police out of evidence. When Matt came back from lunch, a dismissal was waiting for him. But of course that is not the good part of the story.

Every now and then Bill accompanies Matt to his court appearances and vice-versa.(Nobody ever goes with me. I'm assuming its just because my cases are boring but maybe they hate my preaching.) Matt went into court on a pretrial hearing regarding the above mentioned case. Bill accompanied. When Bill came back to the office, he reported thusly. "Man, Matt went dark today! Some prosecutor told him about some physical evidence in that Assault trial and he told her that he would 'Shove it up her ass' at trial. I had to smooth things out." As it happened, Alan was in the same court. His report was somewhat less intense. He vaguely noted that Matt was agitated. I asked Matt when he returned. He was still agitated. He swore he didn't say "shove up ass", although he thought that statement was substantially better than what he did say, considering irony and all. He asked rhetorically, what the fuck a jury would say when confronted wiith that evidence. I told him I didn't know for sure but that something about the ass would probably cross their mind.

So, another case dismissed. Because I am currently the guy in charge, the cases that are resolved are placed on my desk for review. If there seems to be some disconnect between our usual resolution and the evidence, I take note. Likewise, if the firm is flourishing my probiscus is stimulated. For the record, we are kicking ass! Even I was titulated by the results of our firm in the last two months. One person went to prison, and I must admit, perhaps rightfully so. But fucking ten clients had their cases dismissed.

To further report on the week... after Bill's second trial, we went to the Charbar to unwind. (Firm's opinion: Best bar downtown to drink without bullshit.) We sat at the bar, where I could smoke without someone complaining. We observed four prosecutors sitting in the corner talking, undoubtledly about office politics and such. After enough Macallen 12's, Bill starting sending over drinks. After each round they raised theiir glasses in salute. At some point we went over. One of the prosecutors had a case set for trial pending against Bill. Drunkely she confessed that she was worried trying the case against Bill. Another of the prosecutors told her that she was right to be worried because Bill was the best she had eve seen. Bill paused a second, and then with pronounced slurring and a huge smile on his face, said, "Yeah, I'm going to shove this case up your ass!" I decided to call a cab.

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Vice Cops with Nothing Much to Do
Posted by: Ed Chernoff
April 16, 2007

Every six months or so we will get an influx of cases that originate from the HPD Vice unit. Typically, Vice likes to collect statistics, so the busts usually involve stings designed to net as many human beings as possible. During the last six months, the cops have been hanging out at Memorial Park, because well... that's where the men are.

It appears that some men like to make romantic connections at Memorial Park and those that do are somewhat prone to advertising their long resumes in the dark recesses of the park.? All of these love matches are done in private and among consenting adults. Come to think of it, every arrest Vice seems to make involves consenting adults taking every precaution to assure that their activites remain private. Prostitution, illicit table dances, escort requests and penis displays in the woods are all typically private activities.

I don't want to be walking down the street and be subjected to another mans genitals. I don't deserve such a vision, and I would certainly insist that person be prosecuted. But, if I tacitly approve of such behaviour - for whatever reason - where should my objection lie? Surely no law enforcement agency would investigate, if I complained about all the nude men in my gym locker room! (And I suspect some of them like showing their penis' a little too much.)

My view, and I don't think I'm alone here, is that we are wasting our time legislating and prosecuting morality. It might make certain segments of our community feel better when topless dancers are forced to prance into county court, their lucite high heels echoing against the the walls, so that they can admit in shame that their buttocks came too close to a vice cops genitals, but its not going to change anything. If history is any indicator, there's always going to be another pair of buttocks willing to sit down on a lap if the price is right. We are playing dumb for the moralists.

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