Texas Criminal Lawyer Blog

Texas Governor Rick Perry, campaigning for president in 2012, has one message for his state: you are safer at the border than you are in Austin, and it is all the Obama administration's fault.

President Obama has taken credit for doubling the border patrol to 20,000, for drops in the numbers being held at detention centers, and lower crime rates along the border in places like El Paso and Brownsville. Yet Governor Perry thinks that the federal government has provided too little money and that the state has had to compensate by investing its own funds in the border. As a result, money that would have gone to protect the people in cities like Austin, Houston, or San Antonio was instead funneled away, turning these cities into crime-ridden nightmares.

Yet it turns out(surprise, surprise!) that both Obama and Perry may exaggerate. Even though Austin has a reputation for being one of the safest cities in the country, you are more likely to be shot there than in Brownsville, along the border. The fact that Austin's population is more than four times larger may have something to do with it. But it also owes to the fact that Brownsville and El Paso were never the dangerous border cities that many believe. While cities across the border in Mexico were plagued by crimes committed by drug lords, the Texas border cities remained largely untouched. El Paso had one homicide in 100,000, while Laredo had 3.8 and Brownsville had four. The rates stayed low even as the population in these cities surged. Meanwhile, the homicide rate in Austin, Houston, and San Antonio is 4.8 per 100,000.

Gilberto Salinas of the Brownsville Economic Development Council attributes the poor image of border cities to the widespread belief that Mexico's violence has easily crossed the border into the U.S. Indeed, many here in Texas are under the impression that Mexicans routinely shoot across the border at American citizens. Rumors forever circulate that Mexican drug traffickers harass cattle ranchers at the border, though there have been few confirmations. And people like Steven McCraw, director of the Texas Department of Public Safety, claim that Texas has "lost operational" control of its rural areas. I often get questions from readers as to the safety of particular border areas, especially around Sierra Blanca in Hudspeth County.

Whether or not McCraw's view is accurate, the truth is that the Department of Homeland Security has a $57 billion budget for 2012 -- the largest ever -- with nearly $18 million to spend on the border alone. A big chunk of that money goes to local law enforcement agencies in Texas. If anything, the reality seems to be the opposite of what McCraw claims. The Border Patrol at checkpoints like the one in Sierra Blanca routinely pull people over and make them get out of the car so that they can conduct a search and seizure. Often, Border Patrol agents are so eager to find drugs that their pretense for pulling people over is often suspect. Without valid "reasonable suspicion" for pulling people over or "probable cause" for a search, a Border Patrol agent's search could be illegal. Some people are able to hire experienced federal criminal defense attorneys, who can get this tainted evidence thrown out, but too many face sentences for crimes they didn't commit. There is certainly no sign of belligerent Mexicans firing at will or any other chaos that Governor Perry or McGraw suggest.

In criminal law, there is a basic concept known as "mens rea." In Latin, it means "guilty mind." Mens rea has long been an important factor in determining whether someone is guilty of murder, or arson, or other serious crimes. To be convicted of first-degree murder, for instance, it's not enough that you killed someone -- you must have intended to kill that person. Intent is what separates the most serious crimes from the lesser-degree crimes -- murder from involuntary manslaughter. One reason mens rea is so important is because our justice system revolves around the idea (in theory if not always in fact) that it should be difficult to force people to give up their lives because they committed a crime. The court needs to determine whether the crime was committed by accident or whether there were other mitigating circumstances. Many criminal defense attorneys have successfully proven that their clients lacked mens rea to commit a crime, resulting in a lesser sentence or no sentence.

Yet mens rea is becoming less of a factor as the federal criminal code expands. Over the past few decades, Congress has passed more criminal laws that fail to take mens rea into account. Back in the early days of the republic, the first federal criminal law listed fewer than 20 crimes. Today, there are 4,500. Controversies can be found in such far-flung areas as animal rights: for example, a 2006 law makes animal rights protestors criminally liable for provoking fear in the targets of their protests, even if that was not the protestors' intent.

It used to be that the mens rea for crimes was "willful," which generally meant that suspect intended to commit the crime before he or she committed it. However, prosecutors complained that this was too difficult a standard to prove, so many criminal laws have since lowered the mens rea to "knowing." "Knowing" means that the suspect might not have intended to commit a crime, but he or she knew that the activity was wrong. As the criminal code and Federal Sentencing Guidelines expand, more laws have weaker mens rea requirements. Around 40% of the criminal laws passed between the 109th and 111th Congress featured a weak mens rea for nonviolent offenses. The trend has spurred criticism from Justice Scalia, who complained about "an ever-increasing volume" of "fuzzy, leave-the-details-to-be-sorted-out-by-the-courts" laws.

Fortunately, there are signs that Congress's enthusiasm for the tough-on-crime approach is giving way to second thoughts. More Representatives are insisting that any new criminal law include the "willful" mens rea standard. At a 2009 Judiciary subcommittee hearing on the growth of criminal law, Representative Bobby Scott of Virginia insisted that mens rea served an important role in protecting those who never intended to commit a crime. Too often, mens rea is weakened just as a result of the messy legislation process, not out of any real intent. It is good that Congress is beginning to address this.

As University of Virginia professor Anne Coughlin notes, if you criminalize everything, you increase the likelihood that the average citizen will never fully know the penal code. A lowered mens rea means that more people would be guilty of crimes who are otherwise innocent -- that is, they did not even know their actions were wrong. As criminal law even includes cyber crimes these days, we can only hope that the current pushback against a weakened mens rea is only the beginning.

Back in July, this blog discussed a disastrous attempt by the Bureau of Alcohol, Tobacco, and Firearms (ATF) to track down Mexican drug cartel leaders. They let 2,000 guns be smuggled across the border, thinking that they could keep track of each one, only to lose most of them and be indirectly responsible for 150 murders, including a Border Patrol agent's. Now the ATF is trying to redeem itself with a new leader, B. Todd Jones. Jones is a former U.S. Marine who once commanded a military police unit. His goal is to get the ATF to focus back on stopping violent crime, rather than the two big federal investigations taking place in Washington under the watchful eye of House Republican Darrell Issa.

The ATF's general mission is to prevent illegal use of firearms and explosives, and the smuggling of alcohol and tobacco products. It is one of many active federal agencies along the U.S.-Mexico border, sometimes involved in house and vehicle searches and seizures that are possibly illegal. While many of its aims are worthy ones (such as stopping violent crime), it has a somewhat checkered history. Besides the total failure that was its "Fast and Furious" program, the ATF was also part of the tragedy at Waco, Texas in 1993, when agents held a 51-day standoff with the Branch Davidian sect, ending with a fire that killed 76 people. At the same time, it is hard to fault the ATF for trying to regulate firearms, which are so numerous and unregulated that even Al Qaeda instructed its members to go purchase weapons at gun shows.

It is too early to know what to expect of B. Todd Jones's leadership. It certainly can't be any worse than his predecessors'. Even now, crimes continue to be committed with weapons connected to the "Fast and Furious" program -- the most recent in Arizona, where a Mexican national committed aggravated assault on a police officer. If Jones succeeds in cleaning up the ATF, it would be a good thing for all of us. However, it would be even better if he could do it without violating people's rights. The temptation is there: the ATF needs to look responsible, find the missing weapons, and prevent catastrophes like "Fast and Furious" from ever happening again. So they become even more aggressive with their searches, leave no stone unturned and no house or car unexplored -- even if that means entering stopping a car without reasonable suspicion, searching a house without an adequate search warrant, and questioning suspects without first informing them of their Miranda rights. With his military background and history cleaning up the Minnesota District Attorney's office, Jones sounds tough, but is he tough enough to stand up to potential abuses?

Criminal defense attorneys in Texas and other border states see too many cases where criminal suspects must answer charges based on evidence that the police gained illegally. A skilled criminal defense attorney can do his best to get illegally obtained evidence suppressed, but it is always better when we don't have to.

On the 10-year anniversary of "9-11," it is worth remembering all of the acts of heroism which memorialized the way our country united in the days after that terrible event. But it is also worth remembering the grimmer legacy as well. After 9-11, the federal government began imprisoning people accused of terrorism for indefinite periods of time and denied them basic rights, such as the writ habeas corpus. You don't have to be a federal criminal defense attorney to be concerned about any criminal defendant being denied rights guaranteed by the Constitution.

That brings us to Bourmediene v. Bush. In this 2008 case, the U.S. Supreme Court applied the brakes to this government conduct. Bourmediene was a Bosnian held in military detention at a Guantanamo Bay prison camp. His was the third writ of habeas corpus case to reach the Supreme Court since 9-11. In each of the previous cases -- Rasul v. Bush and Hamdan v. Rumsfeld -- the Supreme Court had ruled that the government lacked authority to deny prisoners access to the U.S. justice system. However, Bourmediene was the first case to follow the Military Commissions Act (MCA) of 2006. The MCA tried to make denying justice to prisoners legal, by allowing military commissions to hear the prisoners' cases instead of civilian court judges--thereby restricting prisoners' ability to learn of the evidence against them, permitting "evidence" gained during so-called "extended interrogation techniques," and making it possible to quash writs of habeas corpus.

The Bush administration argued that under the MCA, Bourmediene's write of habeas corpus should be quashed. The Supreme Court, in a 5-4 decision, slammed the door on the Government's case, ruling that even enemy combatants at Guantanamo, Cuba had the constitutional right to habeas corpus -- or to request release from prison. The Court stated that If Congress tried to deny habeas corpus, there needed to be an adequate substitute in place in order to assure the prisoner a chance to prove that he was imprisoned by mistake.

As a result of Bourmediene, a federal judge ordered the release of five Guantanamo prisoners, including Bourmediene himself. In 2009, President Obama signed into law another Military Commissions Act that spelled out new rules for handling the rights of military commission defendants. Even so, attorneys for other detainees are anxious to have the Bourmediene decision perpetuated in new Supreme Court cases. It is easy to see why. The post-9-11 fear of terrorism still holds sway over ordinary citizens and the federal government alike. Congress strongly opposed Obama's efforts to have Guantanamo prisoners relocated to U.S. prisons and tried in civilian court. Right now, more than 700 prisoners remain at Guantanamo Bay. It would be encouraging if the Supreme Court would step in and inject a little sanity.

Overall, there are many things to be proud of in our response to the 9-11 attacks. People sacrificing themselves to save others was a common story. If only we could always keep that generosity of spirit and not give into our darker side. The past several years, government authority has been growing in the name of "safety," including everything from auto searches and seizures to Internet policing for cyber crimes. Travelers are subjected to more extreme security measures, such as full body scans at airports, resulting in increasing invasion of privacy. At least another Bourmediene might be a rational response to fear-based Government behavior which has resulted in a denial of basic Constitutional rights not just to prisoners held in Guantanamo, but to the average American citizen.