There isn't a New York City exception to the Constitution

The mayor and his police chief are shocked, shocked mind you, that there is gambling going on in Ricks and that their stormtrooper tactics of allowing the New York Police Department to stop and frisk essentially at will offends the Fourth Amendment.
I understand that the vast majority of the 4 million plus frisks in the past several years were on 1) black males who 2) made furtive gestures, whatever that means.  You can bet that white guys on Park Avenue wearing $2,500 suits aren't being tossed up against walls and patted down very often.  Like, maybe never.
OK, a little constitutional law on police-citizen encounters.  Basically they come in three levels.
First, police like everyone else has the First Amendment right to go up to anyone and try to start a conversation.  And, the citizen has the First Amendment right to tell the cop to go to hell and walk off.
Along this line, at least in Houston police and prosecutors have gotten the crazy idea that the police have the legal right to go up to anyone at anytime and demand that the citizen produce identification.  People who believe that either have spent too much time in Amsterdam smoking funny cigarettes or they can't read the Penal Code.
In the United States, there is no requirement that anyone carry identification just to walk down the street.  We have to produce our driver's licenses but only when we are driving.  And, we have to produce picture IDs to vote and get on airplanes.   But we don't have a national ID card and I don't expect us to anytime soon.
Police in Texas can demand that a person identify himself only if the person is either lawfully detained or lawfully arrested or if the officer has reason to believe the person witnessed a crime.  That's it, period.  The end.
The second form of police-citizen interaction is what is called the Terry stop, named after the Supreme Court case Terry v. Ohio.  A police officer who has reasonable suspicion that a crime has been or is about to be committed can investigate, including detaining the suspected wrongdoer.  That requires facts, not hunches.  Facts the officer can repeat to a judge.  And, that still doesn't give the officer the right to put a hand on the suspect.
If the officer has facts, not hunches but facts he can articulate, that the suspect is armed, the officer can pat him down.  And, if the officer feels something that he immediately recognizes as contraband, he can go into a pocket or whereever to seize it.  But he has to have ore than a hunch.  The officer still needs facts.
The last level of police-citizen interaction is the full custody arrest.  That requires probable cause that a person committed a specific crime or a warrant -- which must be supported by probable cause that the person committed a specific crime.  A full custody arrest gives the officer the right to search the suspect, transport him to jail, book him and even arrange for a strip search.
What apparently has been happening in New York is police are seeing too many "furtive gestures," presuming that means the person is armed and going the pat down.  By the way, I understand 90 percent plus turn up nothing.
Just think how that makes a person feel, being jacked up and patted down in public.  Maybe powerless?  Maybe put upon and abused?
Mayor Bloomberg says the policy cuts crime.  Yep.  It just might.  On the other hand, I'll bet there isn't much street crime in North Korea.  Maybe he could get the North Korean authorities to suggest new and better ways to control crime.  I'm sure they have a few ideas.
What massive frisks does is convert the police from a public servant agency into an occupying force.  They start to lost their legitimacy when people believe cops can do whatever they want with impunity.
This kind of abuse isn't confined to the Big Apple.  The Department of Public Safety just rehired at least one trooper who had been fired for conducting body cavvity searches on two young women at the side of the road.  The trooper's defense -- apparently accepted by DPS management --  was she was only following orders from a superior.  That's the same defense raised by the SS who dumped the Zyklon B into the gas chambers.  It didn't work then and should not work now.
And even if it did work, do we want DPS troopers who are so lacking in moral compasses that they don't see anything wrong with putting their hands inside a young woman's bikini bottom, theln feeling up inside?

Some hope in the election returns

I admit it, I was scared to death of the election returns.  I was afraid we would have yet another party sweep in the judicial races, sweeping out good judges and sweeping in new judges just because of their party label.
I've seen it too many times.  Like the first sweep in 1982, the first time there were Republican judges because they were appointed by the first Republican governor in a century.
It was awful.  A well respected court of appeals justice was swept out of office by a Democrat who at the time was under indictment charged with getting a handjob from a female client in the Harris County Jail.  Another good Republican judge lost to a lawyer whose highest and best use was making balloon poodles in the courthouse coffee shop. 
Another year a good Democratic judge was beaten by a Republican who later was kicked off the bench for cleaning pistols in front of the jury. 
Once upon a time, the political party leadership ensured that good judges didn't get opponents.  So, the late Joe Kegans regularly ran without opposition because everyone in both parties thought the was a good judge.  It didn't matter to the Republicans that she was a Yellow Dog Democrat.  She ran unopposed.
That's changed.  Now every incumbent judge gets an opponent.
This year was different.  At least at the criminal courthouse, three incumbent Democrats -- swept into office by the 2008 Obama landslide -- were re-elected.  Others were defeated.  It was as if the voters actually considered who to vote for.
I especially was afraid that one of two fine judges on the 14th floor -- one the only Republican to survive in 2008, the other a Democrat who defeated an outstanding Republican in that sweep -- would be defeated.  So, the citizens of Harris County would lose the services of either Mark Ellis, the Republican, or Maria T. Jackson, the Democrat.
I was pleasantly surprised to see that both were re-elected.
An even more pleasant surprise was the "undervote" in judicial races.  Undervotes are ballots case without a vote in a particular race.  So, for example, there were 15,341 ballots out of 1.2 million cast with no vote for president.
The judicial races typically had 60,000-70,000 undervotes.  That means that large numbers of voters either didn't get around to voting in judicial elections or they didn't know which candidate would be the better judge.  Either way, it is a victory for the citizens of Harris County.
Some of the judicial candidates I voted for were re-elected.  Some were defeated.  But it wasn't a Republican or Democratic wipe out.  At least some people exercised some judgment.  And for that we can be grateful.
Judges aren't like legislators or members of Congress.  Party affiliation should mean little.  What is important is whether an incumbent judge of either party is doing a good job.  If so, that judge should be retained in office.  If not, it's time for a change.
Take Judges Ellis and Jackson.  Both were swept into office when their party won in Harris County by a landslide.  Both defeated well respected incumbents.  And, both have turned out to be good judges.  They are polite to everyone in their courts.  They listen to and consider arguments from lawyers.  Then they decide.  They have earned their places on the bench.  They should be kept on the job regardless of their party affiliation.

Defending the District Attorney

The last thing District Attorney Pat Lykos needs in an election year is being defended by a defense attorney. But, I want to set the record straight about her.
Lykos's election in 2008 was the first hostile takeover of the Harris County District Attorney's Office since Frank Briscoe beat incumbent Dan Walton in the 1964 Democratic Primary. For 44 years, the outgoing DA had a big say in picking his successor. Things just rocked along in the DA's office both with personnel and policies.
As Lykos prepared to take office in late 2008, she gave quite walking papers to quite a few longtime assistant district attorneys. I agree with some of the personnel decisions and disagree with others. Some of those given the boot were supporters -- often vocal supporters -- of Kelly Siegler, the longtime, well respected assistant district attorney defeated by Lykos in the Republican runoff. One had "anonymous"blog which was and still is critical of Lykos and her top assistants. He even calls them "the gang who couldn't shoot straight." After publishing a blog comparing Lykos to the GEICO gheko, he probably wasn't too surprised when he got the boot.
Are there problems in the District Attorney's Office. You bet. A good number aren't Lykos's fault. Shortly after she took office, the county slapped a hiring and pay freeze on all county departments. So, as people quit, retire or get fired from the DA's office, they aren't replaced. People get promoted but they don't get raises to go with their new responsibilities. There are fewer people to do the same amount of work.
Is morale low. Probably. I'd be unhappy if I got a "promotion" with more work and responsibility but no more money.
Lykos has done quite a few things which are good. She's the DIVERT program which tries to keep drunk drivers from doing it again. She has caught a lot of heat for doing it but it appears to be working. People charged with first offense DWI can be screened and it they qualify, they go through a program which hopefully keeps them from re-offending. While some people call it an "illegal" form of deferred adjudication, it isn't illegal or a form of probation. It is pretrial diversion which prosecutors both state and federal have been using for years.
The police also don't like Lykos's policy of not accepting felony charges for possession of trace amounts of cocaine, so-called "dirty crack pipe" cases. There are good public policy reasons for this decision.
First, the code of criminal procedure requires that persons convicted of possession of small amounts of cocaine get probation.
Second, it costs a small fortune to arrest a person, process him into jail, house him and get him a court appointed lawyer if he's indigent (and most crack users are). And, both if he's jailed pretrial and sentenced to prison, that person takes up a bed which could be used by a violent or more dangerous person. Many people have forgotten the late 1980s and early 1990s, when prison overcrowding forced state officials to parole just about everyone who was eligible so they would have beds for new inmates.
I for one would rather have that prison cell reserved for a rapist or armed robber than a crack addict.
Third, many of the dirty crack pipe cases are the result of constitutionally questionable police detentions or searches. Takikng those cases encourages police to ignore the constitution.
Lykos has done other things which have improved the operation of the district attorney's office. Before the hiring freeze, she would bring on newly hired prosecutors who were waiting for their bar results and assign them to work under supervision in felony courts. When they finally passed the bar and became lawyers, they had some experience and knew that there are no capital DWI cases in Texas.
For my money, Lykos is a mixture of good and bad things, just like every other public official from the president to the county surveyor. And, yes, Patricia Lykos will never win the award for being sweet and cuddly. That's just not her.
Like all elected officials, she has to answer to the voters for her conduct in office. But, it should be done with facts, not inuendo and half truths.

I deeply support free speech but....

No one believes in free speech and the First Amendment than I do. That is, except for eight justices of the Supreme Court.
Today, the Court held 8-1 that a church group could picket the funeral of a Marine killed in combat carrying signs with slogans like "Thank God for IEDs" and "Thank God for Dead Soldiers." Other signs included "God Hates Fags" and "Fags Doom Nations." The church group is very anti-gay and takes the position that events like 9/11 and the death of members of the military is God's punishment for allowing homosexuality. Members of the church travel around the country doing the same thing at other military funerals. They've done it hundreds of times.
The Marine's father sued the church for intentional infliction of emotional distress. His theory was that he is a private person who shouldn't be subjected to this kind of abuse during the funeral of a son who gave his life for his country.
While I agree that the church members have the right to be anti-homosexual and to express those opinions, it raises my hackles to see them use my precious First Amendment to, in the words of Justice Samuel Alito, "brutalize" the father of this fallen Marine. I don't often agree with Justice Alito but I think he's right on point here.
If they want to shout down President Obama and tell him he will burn in hell for allowing gays in the military, I'd represent them. If they want to picket a gay political caucus meeting, more power to them. It's their right. I disagree with them but I believe in their right to express their views on public matters in public.
However, I also believe that all private persons have a zone of privacy which should be protected. We can pass laws forbidding picketing at private homes. The Supreme Court has said so. We all should have other zones of privacy where we can be protected from intrusions.
That Marine's family was entitled to mourn their son in peace. They sure didn't need to be forced to pass pickets on the way to the funeral with signs suggesting that their son's death was God's punishment for homosexuality in society. The church had thousands of places it could have picketed without intentionally torturing this grieving family.
I recently buried my mother. Losing a loved one, even a mother who had lived 100 years and died after only a short illness, is tough. It has to be even harder when the person being buried is a child who gave his life to protect our country -- and the church's right to protest homosexuality.
Funerals are a way for us to get closure after a loved one's death. Virtually every country's military recognizes this and provides special ceremonies for those who have worn the uniform. I've been to too many military funerals recently. My friends who served are reaching the age where they are dying. When I look at that coffin covered by a flag, hear a bugler play Taps and the firing of three volleys, it always brings tears to my eyes.
To Albert Snyder and his family, I say, thank you for the sacrifice of your son Matthew. Without young men like him, the United States would be at the mercy of those who would destroy us and take away our freedoms. All over the world, there are young Americans in uniform carrying weapons who are guarding us while we sleep.
It is a terrible price you had to pay but I for one am grateful for Matthew's service and your sacrifice.
As to the members of the Westboro Baptist Church in Topeka, Kansas, you won in the Supreme Court but someday you will appear before a higher court. I hope you have a good explanation for your acts in torturing the families of our men and women who gave their lives for our country.
I'm a pretty good defense lawyer but I can't think of a good explanation for you.

Death of a hero

Major Dick Winters died last week. He was 92.
He is best remembered from the book and television series "Band of Brothers." He was commander of Easy Company, 2nd Batallion, 506 Parachute Infantry Regiment, 101st Airborne Division.
Winters won the Distinguished Service Cross shortly after D-Day in Normandy when he led an attack on a fortified German artillery position. The attack was so well planned and executed that it still is used as an example of how to do it at West Point and the Army Infantry School. He likely would have won the Medal of Honor except for strict limitations placed by Gen. Dwight Eisenhower on the number that could be awarded during the Normandy campaign. In recent years, a group of his friends and neighbors started a campaign to have President Obama award him the nation's highest award for valor.
After the war, Winters went into business with another Easy Company veteran until he was recalled to active duty for the Korean War. After he left the Army, he built a business and a farm. He retired in 1997.
Major Winters is an example of the World War II generation, the generation of my parents, the generation rightly called the Greatest Generation. After the war, Winters and his comrades returned to civilian life and worked hard to build a better society for themselves and their Baby Boomer children. By and large, they did a pretty good job. They used their wartime experience and lessons of teamwork to create the greatest economic boom in history. They built suburbs and the Interstate highways. They cured polio and put men on the Moon.
The generation is dying out now. It has been 66 years since D-Day, so the youngest veteran would have to be 83 or 84. They are coming to the end and when they are gone, we will miss them.

My former colleagues played like a drum

A jury in Washington today convicted Igmar Guandique, 29, of murdering Chandra Levy in 2001. Now, will my former colleagues in the news business apologize to former U.S. Representative Gary Condit.
It's a story that has faded into the background. After Levy disappeared in 2001, her parents played the press like a drum by pointing the finger at Condit, a California Democrat. The theory was that Condit had an affair and disposed of the evidence. Her family asserted that Condit wasn't being forthcoming with the authorities.
Well, it wasn't true.
But that didn't make much difference to a lot of editors and reporters who dogged him for months. The story didn't really fall off the radar screen until 9/11. Predictably, Condit lost his re-election bid and his life was career went down the toilet. For a while, he ran an ice cream franchise but that went out of business. Now, he describes himself as retired.
When Condit testified in Guandique's trial this month, he continued to refuse to admit he had an affair with the 24-year-old former government intern. He said his refusal was on principle.
I don't blame Levy's parents for doing everything they could to drum up interest in their daughter's disappearance. I have a daughter and probably would think about doing the same thing. But that is no excuse for those editors and reporters who took up the banner for them and dragged Condit through the mud.
At worst, Condit had an affair with an adult woman who was about half his age. If every member of Congress -- or for that matter, every business executive or lawyer or judge or anything else -- was on the front pages for this kind of relationship, Washington would be a much emptier place.
We forget that when President Clinton was impeached for an affair with a White House intern, several Republican members of Congress leading the charge resigned from Congress after their similar affairs were outed.
Reporters and editors are supposed to keep things in perspective and not trash someone's reputation without proof. It's just wrong.
I spent 15 years as a reporter at the Houston Chronicle and looking back, I can see it is easy to forget that when I wrote a story, I was telling it to a half million people. It's easy for reporters and editors to go for the cheap story but they should remember that they are dealing with people's lives.
Yes, the Condit case also involved a bungled police investigation. But the focus on Condit allowed Guandique to hide in plain site until he went to prison a few years later for attacking young women in the park where Levy's body was found a year after her disappearance.
So, the long and short of it is that Levy's parents played the press with their speculation about Condit's involvement in their daughter's disappearance. And the press went along with it. They had a good story, even without the facts to back it up.
Is anyone going to give Condit his reputation back? How about his career?
Nope. They are shot.
And, will there be editorials in the Washington Post, the New York Times, on ABC, NBC, CBS, Fox and CNN apologizing to Condit?
When pigs fly.
And, it will happen again, just count on it. Decades ago, retired Admiral Daniel Callaghan, a WWII hero who took to writing fiction, said the ethical standards among reporters is the lowest of any person involved. His theory was that no one wanted to "miss" a good "story" even if it wasn't true.
I think he was right.
As for my former colleagues, all I have to say is:
Shame On You.

Traffic arrests causing jail crowding?

Friday, the Houston Police Department announced that it would cease arresting people for minor traffic offenses, presumably those punishable by fines only, because they were causing a jail overload.
This raises the question of how many traffic offenders are arrested by the Houston Police Department and who they are. Are there enough arrests for traffic offenses that it can fill up the jail?
Police in Texas can arrest Texans -- but usually not those with out-of-state driver's licenses -- for any traffic offense except speeding and drinking while driving. Each police officer has the discretion to issue a traffic ticket or arrest the driver for things like driving without a buckled seat belt or making an illegal lane change or a turn without a signal.
And, the Supreme Court has held that it is constitutional for police to have discretion to arrest people and slap them in jail for crimes for which jail is not a possible punishment.
I've had my share of traffic tickets over the years and I've never been arrested. And, I can't recall any of my friends or colleagues being arrested for minor traffic violations. But, I've had a lot of clients arrested for failure to signal a turn.
The difference? Well, maybe it's because because I'm white and middle class and my arrested clients usually are neither.
Some probably arrested for what Chuck Miller, a former judge on the Court of Criminal Appeals, called "poor person in a no poor person zone." I've heard the same sentiment expressed but normally it comes with a racial connotation. I've seen people get arrested on traffic because they were white people in a no white people zone and, yes, you guessed it, black clients arrested in a no black people zone.
Why do the police arrest these folks for minor traffic violations. Well, if they can impound the car, they can search it and look for contraband like drugs. Shocking, isn't it.
Maybe my former colleagues at the Chronicle ought to take a look at the statistics of those arrested on minor traffic violations rather than being issued a citation. I'm curious how many of those people have River Oaks or Memorial home addresses and how many have Third or Fifth Ward addresses. And, I'm curious about their races. How many are white, black or Hispanic?
If I were a betting man, I would bet that the vast majority are young, minority males.
And, why you ask, can't they arrest people with out-of-state driver's licenses? It's because Texas, like most states, is a member of an interstate compact on traffic offenders. That compact which was passsed by the Legislature and approved by Congress, requires issuance of a ticket to persons from compact states if the officer has any discretion about arresting traffic offenders or giving them a ticket, the officer must give the driver the chance to sign the ticket and promise to appear.
The compact was adopted to prevent people from being arrested by Deputy Fife in Mayberry and being required to post a bond before being released.
Of course, most Houston police officers probably haven't heard about the compact. Or, they think it doesn't apply to people they think may have contraband.