Texas Criminal Lawyer Blog

A recent United States Supreme Court argument has been in the news lately; in the case of United States v. Bond, argued before the Supremes on February 22, a woman was prosecuted under Federal Statutes passed by Congress to enforce a ban on Chemical Weapons-- using a treaty with the catchy name of the "Convention on the Prohibition for the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction."

I will refer to this as the "Goldfish Case" due to the reasoning presented in a question by U.S. Supreme Court Justice Samuel Alioto, Jr, which will be addressed later in this blog.

The statute, passed as a Homeland Security measure aimed at terrorists and "rogue states" like LIbya, was instead used by some ambitious assistant U.S. Attorney to prosecute Carol Ann Bond, a microbiologist, who was convicted and sentenced to 6 years in Federal Prison for taking potentially lethal chemicals from her workplace and spreading them on the car of a woman who had been sleeping with, and impregnated by, Bond's husband.

Bond would have been subjected to only two years in state court; she got 6 on the Federal charges, due to the harsh nature of the Federal Sentencing Guidelines. This is part of a developing pattern of state law enforcement agents bringing relatively banal state cases, such as hand to hand drug buys and other street crime cases to the federal level because of the more severe federal sentencing.

The case went to the nation's highest court because of the constitutional issues presented; whether a lone individual has the right to pursue claims that the Federal Government has trespassed into areas reserved by the states; that is, a 10th amendment claim which higher courts have previously ruled can only presented by the states themselves,usually through the state attorneys general, rather than by a lone individual. (a prime tea party issue).

But the Government has agreed that Bond should be allowed to challenge a Federal Statue under which her liberty is being deprived. In argument before the Supreme Court his past week, Justice Alioto then questioned the Government's argument by using the above-stated Goldfish analogy: ".a toxic chemical is a chemical that can cause death to animals. And pouring vinegar in a goldfish bowl, I believe, will cause death to the goldfish, so that's..a chemical weapon."

One of the chemicals Bond used was a chemical used in photography. "There is something odd about the Government's theory that I can buy a chemical weapon at Amazon.com", argued Bond's lawyer.

But I would argue that here again is a bad case brought by an ambitious prosecutor who is using a law intended for international terrorists to bring the giant hammer of the Federal Government down on the head of a jealous woman who was getting even with her husband's lover.

Bad cases make bad law. Even for Goldfish.

There are few areas in Texas that recall the dusty romance and brutal violence of the Old West quite like the Bend Bend. Named for a glittering switchback in the mighty Rio Grande between El Paso and Del Rio, this storied region has long been considered something of a latter day wilderness, hard to tame and nearly impossible to police.

But that hasn't stopped the Feds from trying.

I spend a lot of time defending clients who have gotten tangled up in the disjointed net of enforcement our Feds have thrown across the Big Bend. Today this battle has grown to include high tech toys such as night vision and GPS, but ultimately it's just another front in the age old shootouts of the Wild West, where drugs, guns and money drove men to risk life and limb for lucre.

Start with the drugs. The Big Bend is home to Sierra Blanca, an infamous border checkpoint manned by Border Patrol and ICE for the express purpose of stemming the tide of illegal narcotics that enter this nation from Mexico. Never mind the fact that most drug runners wouldn't think of broaching a checkpoint; the real issue is how many otherwise harmless folks get caught up in this net and forced to pay with their freedom. Even though the Big Bend sees its share of major Federal drug busts, the utter uniformity of its enforcement policies leaves many wondering where the priorities truly lie -- in grabbing headlines or making progress?

Guns represent another front in our quixotic fight against smuggling. Despite millions USD spent annually on stopping illegal border crossings, the Big Bend remains a fairly easy waypoint for gun smugglers looking to sell their wares in nearby Alpine, Fort Davis, and points north. The FBI and ATF get into the mix with countless traffic stops and arrests all along I-10, but the most effective and dangerous arms smugglers continue to find clever ways through this porous border -- and embarrass law enforcement in the process.

Which brings us to the money. The cynic in you might be forgiven for wondering if this is what actually drives the other efforts -- after all, where there is smuggling, there is cash, and lots of it. Enormous sums of money can arise in cases where contraband is being shunted to middlemen and civilians, but the problem for law enforcement is how to police the vast underground economy that has arisen to launder all that money. As a federal criminal attorney in the Big Bend, I see plenty of fraud, bankruptcy and white collar cases that ultimately owe their origins to the lure of easy cash on the border.

There are trade-offs all around us. The Big Bend is a stunning landscape, but just beneath its otherworldly beauty lies a thriving underworld of corruption and contraband. Our law enforcement machinery has expanded in recent years to exact maximum penalties from anyone caught breaking the law in this region, but there are some good ways to fight back. A Texas criminal attorney can work the system to protect you from the clumsy hammer of Federal law enforcement.

The battle between civil liberties and security is as old as democracy itself. Proponents of civil liberties argue that our freedoms should be inviolate even when they are imperfect, and that occasional violence, abuse, and offending behaviors are the price we pay for an open society. Proponents of security declare that there can be no such thing as an open society if we are forced to live in fear, and that everyone must sacrifice some freedom for the cause of our common well being.

Both are valid points, which is why legislators continue to recalibrate state and federal laws. The latest battleground in this war centers around Internet privacy, and the high cost of sex crimes such as child pornography. This week, the Department of Justice made a move toward requiring Internet Service Providers (ISPs) to hold onto the data they collect far longer than ever before, which could theoretically mean that everything you do online, from browsing habits to personal communication, could be stored and available for two years or more.

Already the fight is taking on familiar contours. Those in favor of data retention make the simple point that when laws are broken, our authorities must have some way to subpoena how, when, and by whom. Currently most ISPs retain this information for no more than a few months, effectively applying a statute of limitations to some of our nation's most heinous crimes -- child pornography and predation chief among them.

But what about the other side? There are essential and fundamental points to be made about the value of privacy in the Internet Age, and countless people use the Web under the assumption that their behavior will remain anonymous. Organizations such as the ACLU see a strong potential for the abuse of power if our habits can be used against us at any time. And then there is the very real problem of accuracy: ISP records can tie crimes to IP addresses, but these fail to account for who is sitting in front of a given computer or whether someone else has commandeered the terminal altogether. No wonder so many attorneys are concerned that innocent people stand to be accused of Internet sex crimes.

The stakes couldn't be higher. Advocates on both sides believe ISPs represent the last uncharted frontier in this fight. Either these companies will be freed to act as benign gateways with little oversight or influence over their users' private browsing, or they will become de facto enforcers of federal law enforcement with a continuing interest in policing the Net for wire fraud and Internet sex crimes. Whatever the outcome, you can be sure that those of us who defend our clients against such destructive charges will be watching closely for the best ways to protect our clients.

Most vehicle searches by cops are based upon either probable cause or consent. Request for consent to search must be based upon reasonable suspicion by the officer that there may be contraband aboard the vehicle. Absent consent, the police must have probable cause to search. Usually the road to probable cause goes through reasonable suspicion.

Most searches are by permission. In my cynical opinion, based on 30 years of reading offense reports, most reasonable suspicion is articulated after the arrest, when the arresting officer is preparing the report to be forwarded to the prosecutor.

These reports go from credible to incredible to hilarious. Some examples I have seen are as follows:

1.There was a Bible on the seat next to the driver, along with religious literature. In the officer's experience, this was done to draw suspicion from the driver that drugs might be aboard. (This story, once written in a creative patrolman's report, spread like wildfire among other police reports until squashed by the Texas appellate courts.)

2. The driver and passenger appeared nervous, or would avoid looking directly at the officer. (This one is in every single report to this day, without fail. Absent other indicia of illegality, it alone is insufficient to sustain a challenged search.) Who isn'tnervous when stopped by a cop?

3. The occupants of the automobile, when interviewed, gave conflicting stories as to where they were headed. (This one is fervently followed by the Texas Department of Public Safety patrolmen. See my earlier post on this website.)

4. My favorite, however, occurred recently in the far northern Texas town of Dalhart. My client was stopped, said the officer, because snow was covering the license plate (the driver had just been through a blizzard). When he approached the car, the officer observed burger wrappings in the vehicle. In his experience, such evidence of food consumption is indicative of the "munchies" caused by marijuana use.

This would indeed be hilarious, except that the client is not amused, and the search must be challenged. This kind of silliness goes on every day in Texas and in other states as well. Cops have been stopping kids since the beginning of the automobile age. A good criminal defense lawyer is essential to the defense of these cases. Stops as absurd as these are overturned every day at the trial court level by good, effective criminal defense attorneys -- and a healthy dose of common sense.