Here’s how bonds work in Texas:

D is arrested. Unless his case fits into a few narrow exceptions (capital murder, habitual felony, felony while on bond, deadly-weapon felony after felony conviction, or violent or sexual felony while on parole or probation) he is entitled to bail. High bail can’t be used as an “instrument of oppression”; if a person is entitled to bail (and almost everyone is), he’s entitled to reasonable bail. Bail should be high enough to reasonably assure that D will come to court and won’t break the law.

(In Harris County the judges have agreed to a bail schedule (PDF)—$50,000 for murders, $30,000 for other deadly-weapon felonies, $20,000 for other first-degree felonies, $10,000 for other second-degree felonies, and so on.)

The purpose of bail is to reasonably assure that D will come to court when told to.

Bail can be made in the form of a bail bond or a personal bond. A bail bond is a promise by D to pay the bail amount if he fails to come to court. A bail bond can be a surety bond, secured with the signatures of sureties (typically a bonding company, which charges around 10% of the bail amount for accepting the liability) or a cash bond, secured with the bail amount deposited with the court.

Once D has made bond, whether in the form of a personal bond, a cash bond, or a surety bond, he is released. His bail can be forfeited or revoked if he breaks the law or fails to appear in court, or (on a surety bond) if the surety surrenders him.

The court can put other conditions on D’s bond—for example, don’t have any contact with the complainant, don’t use drugs, don’t drive, for example—and if D violates these conditions his bond can be forfeited or revoked.

My friend Kelly Case, who is running in the Montgomery County, Texas Republican Party primary for judge of the 9th District Court, writes on his campaign blog:

[I]n the 9th, if you are charged with a case that involves a sexual allegation such as aggravated sexual assault, aggravated sexual assault of a child, or similar, and you have the right attorney, you too can get out of jail free.

Shocked? You should be!

Fred Edwards sees nothing wrong with granting a free pass to serious felonies by granting them PR bonds. His record is very clear on this point. He has stated that he would grant PR bonds for all cases, if he had his way. While he claims to be tough on crime, he is releasing extremely dangerous criminals back into our midst, even though the DA’s Office has sought to keep them in jail, until trial.

Serious felonies on PR bond?????

The “right attorney” bit might be interesting. If Judge Edwards is giving preference to some lawyers’ clients, Case should say so. He should say who, he should say why, and he should say how he knows. If he thinks there is corruption involved, Case should have the backbone to say so. If he doesn’t, “the right attorney” is mere innuendo.

Otherwise, Case is playing to the ignorant scared white Republican voters, and it is beneath him.

Case, a longtime and respected criminal-defense lawyer, knows that the DA’s Office seeks to keep many people in jail who don’t belong there. He knows that the DA’s Office often seeks unconstitutional no-bonds and unconstitutionally high bonds. He knows that the judge’s job is not to give the DA’s office what they seek.

Case knows that getting out of jail is not “a free pass.” He knows that bail is to ensure the defendant’s appearance in court. He knows that personal bonds are underused. He knows that sex offenders are less likely to recidivate than other offenders.

Case knows that bail can’t be used as an instrument of oppression. He knows that its primary purpose is to reasonably assure the defendant’s appearance. He knows that while the future safety of the community is a consideration, there are all sorts of sexual assault allegations, and someone charged with aggravated sexual assault of a child is not necessarily a greater danger to the community than someone charged with DWI. He knows that letting a person out of jail on a $30,000 surety bond does not necessarily make him less of a danger to the community than letting him out on his own recognizance or a $30,000 personal bond.

Rather than play to their fears, Case could use this campaign as a platform to educate the voters about how the system works. But that’d be hard.

On Friday morning at 9am, please join me and other freedom fighters at METRO headquarters, 1900 Main Street, Second Floor, to continue the discussion with METRO about METRO police chief Victor Rodriguez’s inviting TSA VIPR teams into our community.

The position of most adherents of the death penalty is that there are enough procedural safeguards built into the system that nobody has ever been executed for a crime he did not commit, and that the probability that someone factually innocent could be executed is so small that it does not merit chucking the penalty altogether.

It should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.

Kansas v. Marsh (Scalia, J., concurring).

Prepare for that to change. Shout it from the rooftops: Carlos DeLuna, executed in Texas for the 1983 murder of Wanda Lopez.

Murdered by the state.

He was the spitting image of the killer, had the same first name and was near the scene of the crime at the fateful hour: Carlos DeLuna paid the ultimate price and was executed in place of someone else in Texas in 1989, a report out Tuesday found.

. . . . .

Hernandez, known for using a blade in his attacks, was later jailed for murdering a woman with the same knife. But in the trial, the lead prosecutor told the jury that Hernandez was nothing but a “phantom” of DeLuna’s imagination.

Does one case change everything?

The killing of Cameron Todd Willingham, based on flawed arson testimony (and a sellout lawyer) persuaded some, but the death penalty still has strong support in Texas. Why would DeLuna’s killing persuade more?

Perhaps because, while in Willingham’s case the real killer didn’t come clean, in DeLuna’s case,

Up to the day he died in prison [in 1999] of cirrhosis of the liver, Hernandez repeatedly admitted to murdering Wanda Lopez, Liebman said.

But fans of the death penalty will find reasons that DeLuna doesn’t matter. We believe what we want to believe, and find reasons to disregard evidence to the contrary.

Pro-death-penalty people will say that I am less critical of an article suggesting that DeLuna was innocent than I would be to one saying the opposite, to which I say, “absolutely.” Confirmation bias runs both ways. And if you are determined to find reasons that Hernandez might have claimed to have murdered Lopez when he didn’t, or reasons otherwise to disbelieve the conclusions of the Columbia report, I can’t stop you. A few who were on the fence will be convinced, and little by little the world will change.

I can’t blame ordinary people for wanting to believe that the criminal-justice system works—it should work. But if you’re involved as a lawyer or a judge in the criminal justice system and you really believe that no innocent person has ever been executed, you’re a fool.

Sorry, Nino.

(Other likely wrongful executions, from the Northwestern Law Center on Wrongful Convictions.)

Armed rentacop Tyler John Duhon is accused of sexually assaulting a woman after arresting her for possessing a marijuana cigarette at Houston’s downtown Greyhound bus station. (PDF of criminal complaint.)

From the criminal complaint, it appears that Duhon’s defense is that the woman consented to have sex with him. 

Usually “she consented” would be a tough defense for the state to overcome. 

But a ”sexual assault…is without the consent of the other person if [among other things]…the actor compels the other person to submit or participate by the use of physical force or violence….” Restraining and handcuffing a person is, at least arguably, the use of physical force (civil-rights cases discuss handcuffing as reasonably necessary force).

Further, a private security guard can’t legally arrest a person in Texas, except for a felony or an offense against the public peace. Possession of a marijuana cigarette is neither.

So if it is true that Duhon arrested the complainant for possesion of marijuana, then even if the sex was consensual, he and his employer (not to mention Greyhound*) have a serious and expensive problem: unlawful restraint (he restrained her: class-A misdemeanor) or possibly aggravated kidnapping (if he threatened to use deadly force: first-degree felony).

Even if restraint were not the use of force, and even if the complainant had made consenting sounds, the unlawful restraint could vitiate the apparent consent. 

I wonder how many Tyler Duhons there are out there, working for Top Gun or otherwise, who think that they can arrest a person for a misdemeanor. More, I wonder how many Harris County prosecutors don’t snap to the fact that a rentacop who has arrested someone for a class-B possession of marijuana has himself committed at least a class-A misdemeanor.

Having sex with an unconsenting stranger is transgressive behavior. Society never countenances it. Restraining an unconsenting stranger is transgressive behavior that society permits only in certain narrowly-delimited circumstances.

The two behaviors are at different points on a single continuum. If we adjust the continuum by tolerating more restraints, sexual assaults become more acceptable…and also more likely: give people the power to arrest, and some of them will use that power to take sexual advantage of those they control. 

The law recognizes this, and tries to restore balance by decreasing tolerance for sexual assault in those cases in which restraint is tolerated: in Texas, a peace officer who has consensual sex with a person in custody commits a felony; he can’t claim consent. There is no per se statutory bar, though, to a rentacop like Duhon (or any other non-peace-officer) having sex with someone he has arrested.

What made Duhon’s restraint of the complainant acceptable and put him in a position of control over her? What made his coworker, Kajhri Williams, think it was okay for him to go alone into an office with a handcuffed person? Not the law (which didn’t allow the arrest), but the “war on terror,” which Greyhound used to justify putting Duhon in a position of petty authority, wielding a gun and handcuffs; and the “war on drugs,” which Duhon used to justify the arrest.

The consequences to a woman who was just trying to go about her business are hardly surprising.

*This case should allow some personal-injury lawyer to retire.

Credulous fabulist Craig Malisow, never one to let the truth get in the way of a good story, continues to publish fiction in the Houston Press on my friend Shawn Roberts.

When his first short story on the subject was published last year, I wrote a letter to the Houston Press, which the Press didn’t deign to publish.

It follows:

To the editors:

I was representing Shawn Roberts when a jury found him not guilty of delivering heroin to Tara Sganga.

When Craig Malisow and I talked about his story before it was published, he mentioned to me one “fact” that he seemed to think important to the story. I told him that it was not true, and that someone was giving him bad information.

That particular “fact” didn’t make it into the story. Unfortunately, Mr. Malisow wouldn’t share any other details of the story with me before going to press. If he had, I could have told him that many other details, some of which Mr. Malisow tried to sell as significant in the published story, were also incorrect. For example, it is not true that only one witness testified for the State at Shawn’s trial; it is not true that there was a knife found in the apartment sink.

What would a nonfiction writer have done with this story? Would he have talked to the paramedics who responded to the scene about how they found Ms. Sganga? Talked to Mr. Hayes (whose name Mr. Malisow couldn’t even get right), who was present when Ms. Sganga passed away? We can only imagine; it was easier for Mr. Malisow, rather than take these obvious steps, to take as truth the account of Ms. Sganga’s aggrieved family.

If you were to remove from Mr. Malisow’s story the lies and half-truths that he was fed by unnamed family members, and the innuendos Mr. Malisow drew from these fictions, what would be left? The unfortunate deaths, from suicide or drug overdose, of four people with whom Mr. Roberts was close. What did these four people have in common?  Mr. Malisow sees only Shawn Roberts; I see drug abuse and mental illness. If you hang around heroin abusers for long enough, some of them are going to die.

Mark Bennett

One of these things is not like all the others:

A. Wilmington criminal-defense lawyer Eugene Maurer accuses the complainant in an assault case of using the incident to seek attention.

B. Menlo Park family lawyer Jack D. Berghouse sues the school that punished his client for cheating because “the school’s policies regarding punishment for cheating are vague and contradictory and shouldn’t be enforced.”

C. Chicago criminal-defense lawyer Cheryl Bormann wears hijab to her client’s arraignment at Guantanamo and asks the court to order the other women present at the hearing to dress more modestly.

Each is an example of lawyering that is at least arguably reasonable to lawyers but outrageous to nonlawyers. Maurer calls a spade a spade; Berghouse attacks the law applicable to the case; Bormann focuses attention on something other than her client’s alleged bad acts.

But the answer is (B). Because Berghouse is not only his client’s lawyer; he’s his client’s father as well. And saying, “sure he cheated, but cheating isn’t really against the rules” may be good lawyering, but it’s lousy parenting.

This wouldn’t have been much of a story if Berghouse had left the argument to a hired gun. It wouldn’t necessarily have been right for him to pay a lawyer to make the best possible argument for not punishing junior’s cheating, but it would have been arguably reasonable, and in a world filled with folklore about crazy lawsuits it wouldn’t likely have made the news.

The media seem to have been gentle with Berghouse’s son so far—I haven’t seen his name prominently mentioned—but Berghouse couldn’t have known that would happen. Filing his suit was not only a public demonstration of parental ineptitude (look, everyone! I brought up a kid who cheats! I support him in doing it!), but also an exposition of poor online judgment. Once the son’s name slips out (as it likely will, especially if dad’s suit succeeds) and is connected to the lawsuit (as it will be), there’s no erasing that: anyone googling junior’s name in the future (and some day everyone who has anything to do with him will google his name) will see that he cheated on his English homework in tenth grade.

When people hire lawyers, they outsource their judgment to us. They rely on our good judgment to preserve fortunes, their freedom, their lives, and their reputations. Lawyers need to have good judgment. Representing your son and filing a lawsuit that draws public attention to his cheating? Not so much.

In which Todd Dupont, Franklin Bynum and I discuss METRO VIPRgate and have way too much fun:

When we spoke to the METRO board of directors last week, it struck me that some of the things that I consider common knowledge might not be. Chairman Gilbert Garcia asked me for links to my blog posts on the subject of the meeting, by which I think he meant TSA and its VIPR teams.

I’m not the best resource for either, but I can point the METRO board in the right direction.

For TSA’s airport depredations, and an introduction to TSA’s culture of contempt for American travelers’ dignity and freedom, see Lisa Simeone’s TSA News.

For the direction that TSA is taking, exporting its culture to the surface-travelling public, see this post by Simeone.

The Amtrak police chief barred VIPR teams from Amtrak property after their illegal harassment of passengers disembarking in Savannah.

Garcia, the chairman of METRO’s board, seems to recognize that the buck stops with him. If Chief Rodriguez bollockses up METRO’s relationship with its passengers and the community by inviting VIPRs to town and demanding papers from disembarking passengers, it’s the board that will be held accountable.

The statute authorizing VIPR teams requires the Secretary of Homeland Security to:

(3) …prior to and during the deployment, consult with local security and law enforcement officials in the jurisdiction where the VIPR team is or will be deployed, to develop and agree upon the appropriate operational protocols and provide relevant information about the mission of the VIPR team, as appropriate; and

(4) …prior to and during the deployment, consult with all transportation entities directly affected by the deployment of a VIPR team, as appropriate, including railroad carriers, air carriers, airport owners, over-the-road bus operators and terminal owners and operators, motor carriers, public transportation agencies, owners or operators of highways, port operators and facility owners, vessel owners and operators and pipeline operators.

So before VIPR teams operated at or on METRO facilities, METRO should have been consulted. The board wasn’t consulted; Chief Victor Rodriguez set up the METRO-VIPR operation without consulting the board. I have heard that Tom Lambert, METRO’s ex-chief and now-VP, runs interference for Chief Rodriguez. Whether that’s true or not, the first step the board should take in preventing further community outrage is to make federal operations affecting METRO a matter for the board.

Reports are that yesterday (30 April 2012) at about 3pm three uniformed METRO police officers accosted about a dozen passengers getting off the #219 bus from downtown to the West Road Park and Ride and asked for ID.

What does this have to do with METRO’s mission?

Not a thing. METRO should be encouraging ridership, not discouraging it by demanding riders’ papers.

(The comparison is inescapable: requiring papers for internal travel is a hallmark of modern totalitarian regimes.)

It’s hard not to see this as a deliberate slap in the face by METRO to those concerned citizens who appeared less than a week ago at METRO’s board meeting to protest METRO’s inviting TSA into our community and performing (as reported—and now denied—by METRO) “random bag checks.”

It’s as though METRO is saying, “look: we don’t need those vipers from TSA to help us act like fascist thugs; we can do it in white neighborhoods as well as black neighborhoods; and there’s not a damn thing you can do about it.”

[Update: A federal statute, 28 USC §1442, allows removal to federal court of any civil or criminal case against:

The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

So, like an occupying army, the TSA has it wired so that it won't be subject to the jurisdiction of the occupied state's courts.]

A little Texas law:

A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun…

(Texas Penal Code Section 46.02)

Section[] 46.02…do[es] not apply to: (1)  peace officers or special investigators under Article 2.122, Code of Criminal Procedure…

(Texas Penal Code Section 46.15. There are other exceptions—"in the actual discharge of official duties as a member of the armed forces," for example—but none of them appear relevant to the subject of this post.)

The following are peace officers…[exclusive list of 36 types of state law-enforcement officers].

(Texas Code of Criminal Procedure Article 2.12.)

(a)  The following named criminal investigators of the United States shall not be deemed peace officers, but shall have the powers of arrest, search, and seizure under the laws of this state as to felony offenses only:
(1)  Special Agents of the Federal Bureau of Investigation;
(2)  Special Agents of the Secret Service;
(3)  Special Agents of the United States Immigration and Customs Enforcement;
(4)  Special Agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives;
(5)  Special Agents of the United States Drug Enforcement Administration;
(6)  Inspectors of the United States Postal Inspection Service;
(7)  Special Agents of the Criminal Investigation Division of the Internal Revenue Service;
(8)  Civilian Special Agents of the United States Naval Criminal Investigative Service;
(9)  Marshals and Deputy Marshals of the United States Marshals Service;
(10)   Special Agents of the United States Department of State, Bureau of Diplomatic Security;
(11)  Special Agents of the Treasury Inspector General for Tax Administration; and
(12)  Special Agents of the Office of Inspector General of the United States Department of Veterans Affairs.
(b) A person designated as a special policeman by the Federal Protective Services division of the General Services Administration under 40 U.S.C. Section 318 or 318d is not a peace officer but has the powers of arrest and search and seizure as to any offense under the laws of this state.
(c)  A Customs and Border Protection Officer or Border Patrol Agent of the United States Customs and Border Protection or an immigration enforcement agent or deportation officer of the Department of Homeland Security is not a peace officer under the laws of this state but, on the premises of a port facility designated by the commissioner of the United States Customs and Border Protection as a port of entry for arrival in the United States by land transportation from the United Mexican States into the State of Texas or at a permanent established border patrol traffic check point, has the authority to detain a person pending transfer without unnecessary delay to a peace officer if the agent or officer has probable cause to believe that the person has engaged in conduct that is a violation of Section 49.02, 49.04, 49.07, or 49.08, Penal Code, regardless of whether the violation may be disposed of in a criminal proceeding or a juvenile justice proceeding.
(d) A commissioned law enforcement officer of the National Park Service is not a peace officer under the laws of this state, except that the officer has the powers of arrest, search, and seizure as to any offense under the laws of this state committed within the boundaries of a national park or national recreation area. In this subsection, "national park or national recreation area" means a national park or national recreation area included in the National Park System as defined by 16 U.S.C. Section 1c(a).
(e) A Special Agent or Law Enforcement Officer of the United States Forest Service is not a peace officer under the laws of this state, except that the agent or officer has the powers of arrest, search, and seizure as to any offense under the laws of this state committed within the National Forest System. In this subsection, "National Forest System" has the meaning assigned by 16 U.S.C. Section 1609.
(f) Security personnel working at a commercial nuclear power plant, including contract security personnel, trained and qualified under a security plan approved by the United States Nuclear Regulatory Commission, are not peace officers under the laws of this state, except that such personnel have the powers of arrest, search, and seizure, including the powers under Section 9.51, Penal Code, while in the performance of their duties on the premises of a commercial nuclear power plant site or under agreements entered into with local law enforcement regarding areas surrounding the plant site.
(g)  In addition to the powers of arrest, search, and seizure under Subsection (a), a Special Agent of the Secret Service protecting a person described by 18 U.S.C. Section 3056(a)  or investigating a threat against a person described by 18 U.S.C. Section 3056(a) has the powers of arrest, search, and seizure as to:
(1)  misdemeanor offenses under the laws of this state; and
(2)  any criminal offense under federal law.

(Texas Code of Criminal Procedure Article 2.122, Special Investigators. Entire statute quoted to show how detailed it is.)

Working backward:

A TSA officer (for example, on a VIPR team) is not a "Special Investigator" under Article 2.122 of the Texas Code of Criminal Procedure.

Nor is he a "peace officer" under Article 2.12.

Therefore the exception of Penal Code Section 46.15 does not apply to him.

Therefore it is a violation of Texas law for him to carry a firearm.

This is an arrestable misdemeanor offense with a penalty of up to a year in jail and a fine of up to $4,000. Texas law enforcement officers should arrest TSA officers openly carrying firearms in public.

Will they? Not likely. But if you're a police officer and you do your duty and arrest a TSA agent for unlawfully carrying a weapon, you'll be a hero.

If no cop arrests a TSA agent for UCW, is the discussion purely theoretical? Not necessarily.

A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

(Texas Code of Criminal Procedure Article 14.01.)

In Turner v. State, (Tex. App.—Houston (14th Dist.) 1995, pet ref'd.) the court held, under the particular facts, that unlawfully carrying a weapon was an offense against the public peace:

The sight of someone holding a handgun under these circumstances would lead one (and did lead Creel) to the conclusion that violence or danger is threatened, and would certainly induce “disquiet and disorder [or] terror or fear … and threaten danger … in a person of ordinary firmness.”

Would a TSA agent carrying a handgun in public induce disquiet and disorder in a person of ordinary firmness? Maybe so—especially if he's on a VIPR team. It was, after all, no accident that they named these teams after the most deadly of reptiles. They didn't name these teams "Visible Intermodal Prevention and Response" teams and then notice that the acronym could be pronounced "viper." ("Intermodal" isn't even the right word.) Fear and disquiet are what TSA intended.

If you are not a cop and you arrest a TSA agent for violating Section 46.02 of the Texas Penal Code, you will be not only a hero but a legend. There will be songs written about you.

(And if you get in trouble for it, call me and I'll defend you for free.)