Texas Criminal Lawyer Blog

Suppose you were convicted of drug possession in federal court. The Border Patrol found marijuana in your trunk, enough to put you away for a long time based on the Federal Sentencing Guidelines. Yet what if that the Border Patrol did not have probable cause to search your truck? What if they forced you to confess without first reading you your Miranda rights? A seasoned federal defense attorney could claim that this evidence is "fruit of the poisonous tree" and get it thrown out in federal district court. Unfortunately, too many suspects lack even an adequate defense attorney. The result is a prison sentence.

A defendant's last hope in that situation is to appeal. A federal or state appeal is serious business. You need to show that an error of law took place, such as if the judge gave an incorrect legal instruction to the jury. If the panel on the appeals court agrees, your conviction is overturned. More than ever, the defendant needs an attorney who has paid close attention to his case, knows the latest developments in the law, and can make sophisticated arguments.

A skilled private attorney can do those things. But what if you can't afford to hire an attorney? Then you would be entitled to a public defender. A public defender has the same role at federal or state level, which is to represent "indigents," or those unable to afford representation. Public defenders can represent indigents in trial and at appeal, though at the state level, they are restricted to just the first appeal. They are also extremely busy. By some accounts, up to 90 percent of criminal defendants at the state level rely on public defenders. This recent article underscores Texas's struggle to maintain adequate funding for legal aid. Because of insufficient resources, no matter how skilled and dedicated a public defender may be, he is often overwhelmed by cases. This is a problem, because then he cannot give adequate time to each case. As a result, important details could get missed that mean the difference between freedom and incarceration.

Many people charged with a federal or state crime might qualify for a public defender but really want to hire their own attorney. Even if it is a strain, if you can possibly afford to, hire a private attorney. First, a private criminal defense attorney can devote more time to your case. He or she can pursue all possible defenses, move to suppress evidence, and preserve error for appeal or even a post-conviction writ. Second, it gives the public defenders more time to devote to those totally indigent folks who really need their services. With more time, a public defender can provide more effective representation, and everyone gets a fair day in court.

We are fast-approaching the 45th anniversary of Miranda v. Arizona. This landmark 1966 Supreme Court case has become a mainstay of every law school classroom and nearly every lawyer-cop show on television. Almost anyone can recite the words by now: "You have the right to remain silent. Anything you say can and will be held against you in a court of law. You have the right to the presence of an attorney..." And if you are an indigent, you have the right to have an attorney appointed for you.

Under Miranda, law enforcement must give warnings whenever a suspect is in police custody, before an interrogation. The reason is to protect the suspect's Fifth Amendment right against self-incrimination. This is especially relevant to clients taken into police custody after a vehicle search and seizure turned up drugs or other potentially incriminating evidence. Yet even though Miranda appears to have been embraced by the mainstream, it has been under attack since the very beginning. Many (including Richard Nixon) complained that it would undermine law enforcement's ability to go after serious criminals. Since 1966, law enforcement officials have looked for ways around the Miranda warnings. Sometimes they were thwarted by the Supreme Court, but too often - especially in recent years - they received its sanction.

In 2004, a plurality of the Court shot down a common police practice of withholding Miranda warnings until after they had interrogated the suspect in Missouri v. Seibert. Yet it introduced the idea that the pre-warning confessions could remain valid if the warnings were withheld "in good faith" - however ill defined. Six years and a few new Supreme Court justices later, we had Berghuis v. Thompkins. Here, the Court held that suspects who wanted to exercise their "right to remain silent" had to say so specifically. Speak for the right not to speak.

So now criminal suspects must do something counter-intuitive in order to exercise their basic rights--that is, if anyone even informs them of their rights in the first place. Suspects can waive their rights if done knowingly and voluntarily, but in reality, they often do so without understanding what's at stake. Too few suspects have a strong criminal defense attorney at their side when they speak to police. This latest development is destined to put more people in jail.

What will become of Miranda when it reaches its 50th anniversary? Hopefully this important case will still be honored. Yet the current conservative majority on the Supreme Court seems too willing to chip away at its holding. Unless there is a Justice Kennedy or Scalia retirement within the next few years, the Berghuis majority will be there to leave its mark on the next Miranda case. It will then be more important than ever for a suspect to have an experienced federal defense attorney at his side during questioning.

Last month, Border Patrol agents seized 160 pounds of cocaine worth $5 million from a truck at a Sierra Blanca, Texas checkpoint. They also seized 50 pounds of marijuana, $150,000 in cash, 25 pounds of cough syrup, and a loaded gun.

This is the type of story that makes people feel good when they read it. It makes them think that the Border Patrol is really doing its job, that its methods must be working. Yet while the Border Patrol may sometimes find drugs in a way that does not trigger a Fourth Amendment challenge, this blog has pointed out the ways in which law enforcement has used ridiculous post-hoc reasons for searching and seizing from a vehicle. There is too much opportunity for abuse. People should not have to worry about their privacy every time they cross the border.

Just how effective is the Border Patrol anyway? The U.S. border with Mexico is 2,000 miles long, and the Border Patrol has 20,500 agents guarding 700 miles of it. It is the most frequently crossed border in the world, with 350 million crossings per year. A lot of the action takes place in Sierra Blanca, where Interstate 10 meets a border checkpoint. Yet with so many crossings and so few miles guarded, the Border Patrol can't hope to ever scrutinize all border activity. So many drug smugglers find ways to evade the checkpoints and get their cargo across the border. (That does not even include the smugglers who make deals with corrupt agents for safe passage across.) Maybe to overcompensate for what they can't control, Border Patrol agents find reasons to stop and search ordinary citizens at checkpoints. Many of these people probably showed no sign of suspicious behavior. Yet all at once, they find themselves at a state or federal courthouse, facing the threat of prison time.

People in Texas who are arrested after a car search should not attempt to represent themselves. They should find an experienced federal criminal defense attorney right away. Only a federal defense attorney with years of working on search and seizure cases can give them the help they need. And the next time you read about the Border Patrol finding drugs, remember that there is another, less rosy, side to the story.

This recent article discusses what would have happened to the FBI if the government had shut down. Amongst other things, the FBI would not have had the funding to fight federal white collar crimes. It is a good starting point for looking at the vast scope of the FBI, its role in fighting white collar crime, and what it means for the accused.

"White collar crime" is a general term for the numerous frauds and scams committed by businessmen and government professionals. Types of fraud include money laundering, bankruptcy fraud (where the person files false information or conceals assets), mortgage fraud, insurance fraud, and more. Scams include pyramid schemes where people are encouraged to participate in a program with no real product or service, so "profits" come solely from participants' investments. Sometimes white collar crime comes in the form of cyber crimes. The white collar criminal could be a lone anonymous businessman, or it could be Bernie Madoff or one of the powerful people who ran Enron. Either way, innocent victims lose their life savings as a result.

Yet investors may not be the only innocent victims. With the FBI working aggressively with other federal agencies, people who committed no crime risk getting caught up in their net. The FBI fights white collar crime on multiple fronts. With bankruptcy fraud, for instance, it looks not only at individuals and businesses who could be concealing assets, but also those with multiple bankruptcy filings, and those whose filings could be associated with another criminal enterprise. For money laundering, the FBI created the Forensic Accountant Program (FAP) in 2009 to attract professionals who could do thorough forensic financial investigations. With so many targets, it is almost inevitable that the FBI will cast its net too wide, ensnaring innocent people. When that happens, they need to find a federal criminal defense attorney who will fight for their interests.

The threat of FBI overreach is still present, even as the article noted that its focus has been diverted somewhat by the threat of terrorism. Innocent people could then find themselves the target of federal grand jury investigations. Those investigations could take months, even years. The target of an investigation would need to make sure that a federal defense attorney with years of experience was at his back.