Texas Criminal Lawyer Blog

The Border Patrol spends much of its time looking for people with certain suspicious characteristics, so that agents can pull them over at checkpoints like Sierra Blanca on "reasonable suspicion" and search their cars for weapons or drugs. But what happens when the person they should be suspicious of is the one they are most likely to trust? That was the case with J.T. Ready of Arizona, a volunteer border patrolman who, tragically, ended up murdering his girlfriend and her family before turning the gun on himself.

Ready's history with the border has a few things in common with the history of the Border Patrol itself. As Ready determined that there was a growing "narco-terrorist" threat along the Arizona-Mexican border, he amassed more and more weapons to fight, and persuaded more and more people to patrol the border with him in a brigade. Calling his group the "U.S. Border Guard," Ready frequently patrolled the Pinal County desert in search of immigrants or other suspicious people. He advocated for greater deterrents to be placed along the border--such as landmines.

Ready was also welcomed by state political figures, at least initially. He was mentored by Russell Pearce, the state politician responsible for crafting Arizona's SB 1070, one of the toughest immigration laws in the country. Later, these same people began to part with Ready as his views grew more extreme. However, no media reports suggest that Ready was ever taken aside for serious questioning, or had his house searched for evidence. As long as he was entirely upfront with his desire to point his large cache of weapons at "undesirables," he was more or less left alone.

Now that Ready has taken his own life and the lives of four others in such dramatic fashion, it may be time for border security advocates to ask uncomfortable questions. Such as whether border volunteers like Ready cause more problems at the border than they are worth. Or what the Constitutional boundaries exist for people like Ready, who are not state or federal actors bound by the Fourth Amendment, but nevertheless seek to perform certain federal functions, such as "security". Or whether it is time for the Border Patrol to take a step back and take a look at the big picture, and do its part to discourage offshoot groups.

More evidence is creeping up that the beefed-up response to various border "threats" may not be working or might not be necessary. A recent article found that predator drones, expensive unmanned aircraft designed to locate drugs and illegal immigrants, have been underperforming. The drones cost $3,000 per hour to fly and have barely half the number of flight hours that Customs and Border Protection had scheduled on the northern or southern borders. Meanwhile, there is other recent evidence that more Mexicans, at least, are returning to Mexico than are illegally crossing the border into the United States. And then there is the fact that there is little evidence that violence from drug cartels in Mexico has spilled over into the United States, despite border security advocates' claims.

According to Texas state senator Jeff Wentworth, border violence and drug trafficking are hurting the Texas economy. Texas law enforcement departments have responded by banding together to form what is known as "Operation Border Star," meant to confront criminal activity on both sides of the United States-Mexico border.

If Senator Wentworth is to be believed, the drug cartels appear to be working on multiple fronts to destroy public order, and have largely succeeded. They have been recruiting Texans to drive vehicles loaded with drugs across the border. They have trespassed onto the property of nearby ranchers, sometimes stealing equipment along the way. Finally, they have brought Texas politicians into their web, as this blog discussed, though one reason politicians might have to cooperate is to protect their families. The cash seized at the border is staggering, with $8.5 million seized since January of this year.

Meanwhile, Texas law enforcement officials have responded -- pardon the pun -- with guns blazing. As part of Operation Border Star, the Department of Public Safety has commissioned up to six patrol ships to police the Rio Grande River and the Intracoastal Waterway. Each one is equipped with night vision, automatic shielding, and, of course, "multiple automatic weapons." Supposedly these patrol ships have already found stolen property worth $23.6 million, as well as 46 kilos of cocaine and 25,000 pounds of marijuana. County jails are stuffed to the brim with people arrested for drug crimes. Police are involved in more high-speed chases than ever, as drug trafficking suspects try to evade search and seizure.

Senator Wentworth's concerns should not be dismissed offhand, since drug cartels and human traffickers pose a real danger to civilians. At the same time, there is evidence that this danger may be exaggerated. One recent article reports that even though Mexico has experienced over 50,000 organized-crime-related murders since 2007, the violence is not spilling over the border. An 83-page report called "Beyond the Border Buildup" found that cartel-related kidnappings were declining, but cautioned that despite the border build up, drugs were still flowing in and out of the country along understaffed international bridges.

With such a hot topic as drug trafficking, it is easy to lose perspective. But the one thing that is necessary when it comes to drugs and border security is to see the big picture --of what is necessary for safety and security, and what is not. If we continue to see the borderland as a hotbed of terror and plots to kill, kidnap, and traffic drugs, then no amount of tools will ever be enough to combat the threat. We just end up spending more state and federal money on shiny new weapons, like those high-powered patrol boats. Then we justify it by claiming that the threat is never dead and never will be. Meanwhile, criminal defense attorneys see the flip side. We see too many people pulled over by bored young Border Patrol cops at checkpoints like Sierra Blanca " looking for somebody to mess with". (This quote is from a veteran member of a local drug task force, during a bull session about the flaws of enforcement of drug laws in our area.) The result is that somebody's kids end up charged with possession of small amounts of marijuana or other drugs and forced to spend two or three days in jail, charged with grim sounding felonies such as Possession of Hashish or THC or "drug paraphernalia" (which can be anything from a pipe to an Altoids box). The politicians are playing to the crowd with the claim that no price is too high for the protection of our borders. But on a day to day level on the highways of Texas and other border states, away from the glitz and glitter of the shiny toys, the cost is the erosion of our constitutional right to be free from illegal search and seizure, and to go about our lives free from being "messed with."

The Innocence Project, a national public policy firm known for using DNA to exonerate convicted criminals, released a report finding that Texas courts have ignored prosecutorial misconduct 91 times since 2004.

The report was first discussed at a University of Texas symposium on the criminal justice system. Research was conducted by the Veritas Initiative, which reviewed all of the published trial and appellate court decisions addressing prosecutorial misconduct between 2004 and 2008. Veritas followed up by studying Texas's public attorney disciplinary records from 2004 to November 2011 to determine whether the prosecutors ever faced consequences for misconduct. The findings are enough to shake the confidence of even the most cynical criminal defense attorney.

Only one prosecutor was disciplined for misconduct during those seven years -- for an offense committed before 2004. Of the types of misconduct found, improper examination and improper argument were the main types of error. However, few of these resulted in a court reversing the conviction. In fact, out of 36 examples of improper argument, and 35 examples of improper examination, just three were reversed in each case. Texas courts were most likely to reverse cases where prosecutors failed to turn over Brady evidence -- that is, evidence fundamental to determining a suspect's guilt or innocence -- in violation of the suspect's constitutional rights. This occurred eight times, resulting in seven reversals. Of the types of cases most likely to have misconduct, murder cases (28% of the cases) and sex crimes (24% of the cases) led the way.

Though the findings are grim, there are a few caveats. First, nearly all of the errors were from cases that went to trial -- accounting for exactly 3% of Texas criminal cases. Among the cases where misconduct was raised, the Texas courts did not always address them directly. Second, several Texas court opinions are not in writing, and those that are in writing may not have been published. Finally, the courts' distinction between errors that are "harmful "and "harmless " does not give a clear picture of how serious the misconduct was-- just that the court found that it would not have affected the trial's ultimate outcome.

That said, any prosecutorial misconduct is serious, regardless of its effect on the jury's verdict. The study noted that few Texas DA's offices have any system at all for preventing major misconduct. Even when bar associations are informed, they often fail to provide necessary discipline. Hopefully the Innocence Project study will be a first step toward focusing the Organized Bar's attention on this serious matter.

A computer hacker known for being the first to "jailbreak" an iPhone wound up getting caught in a more traditional way -- at a Sierra Blanca border checkpoint for drug possession. George Holz, known online as "geohot," was on his way to give a speech at a SXSW conference when he was arrested, then later booked for felony drug possession.

This is an interesting case of contrasts. The high-flying cyber space hacker, who constantly pushed the boundaries of what was accessible or legal, was brought to the ground by enforcers in a drug war that has lasted for 30 years. A 22-year old with extraordinary talent was in trouble for the same reason as countless other border visitors. Holz shot into the limelight in 2008 by being the first to "free" his iPhone by physically taking it apart. He then jailbroke a Playstation 3, earning the wrath of SONY and a lawsuit that was later settled. Holz would go on to work for Google and eventually became a software engineer for Facebook.

When Holz passed through the Sierra Blanca checkpoint, drug-sniffing dogs barked at his car, alerting the Border Patrol. Border Patrol agents then forced Holz and his friends to leave the vehicle while they conducted a search. Ultimately the Border Patrol found a quarter ounce of marijuana and chocolate edibles containing less than one-eighth of marijuana in Holz's glove compartment. Holz had a prescription for medical marijuana from California, but as this blog explained previously, Texas does not recognize medical marijuana prescriptions from any state. Thus, Holz had no cover and the Border Patrol agents took him to the local sheriff's office.

According to various sources, instead of taking the actual amount of marijuana into account and giving Holz a citation, the sheriff took the weight of the entire chocolate edibles as the proper measure of how much pot they contained, in order to boost the charges. To make matters worse,California medical marijuana tests out as Hashish, which is a 2d degree felony in Texas. Holz was booked for a felony and forced to post $1,500 bail.

What lesson could one draw from this? That even those who manipulate the latest in technology can't manipulate the current criminal code as it relates to drugs? One obvious lesson, if the story about the sheriff is true, is that the danger of the intense focus on drugs is that it leads to far too many mistakes, if not outright abuse of authority. On the other hand, while Holz was unlucky that he had to post bail, he escaped a much worse fate. Any criminal defense attorney could tell you that Texas is pretty brutal toward marijuana users. Even those in possession of less than one ounce face a Class B misdemeanor charge, which carries potentially 180 days in prison and a $2,000 fine. Just possessing marijuana paraphernalia equals a Class C misdemeanor and a $500 fine.

Although the Federal Sentencing Guidelines were enacted in the 1980s to erase sentencing disparities, sentences passed down by federal courts still vary wildly from district to district. A new study suggests that the problem lies with individual judges, rather than the facts of the case.

The Transactional Records Access Clearinghouse (TRAC) report studied 370,000 sentences imposed by 885 judges from a across the country, between 2007 and 2011. It is the first study of its kind. Before, judicial decisions in criminal cases, for instance, were always too difficult to find because they could not be searched by the judge, only by the defendant or lawyer's name. Also, the United States Sentencing Commission typically excludes judges' names from its sentencing data to prevent individual judges from being singled out. TRAC accessed the data using the Freedom of Information Act.

What the TRAC report showed was that sentences for common crimes, such as drug crimes, could vary dramatically depending upon the district or the judge. Here in Texas, one Northern District judge issued typical sentences of 60 months, while another issued sentences of 160 months. On the other hand, the judges at the district court for Minnesota had little difference between them -- the low was 52 months and the high 64 months. A similar discrepancy was found in white collar cases. Of the discrepancies, the report noted: "[T]o the extent judges' median drug sentences depart from one another within the same district, these differences cannot be explained on the basis of the worthiness of the cases handled by individual judges. One or more other factors -- such as the pre-existing predilections of the judge assigned -- must be the source for these disparities."

TRAC does not go further than this, such as speculating why certain judges issued much greater sentences than another judge in the same district. There is no mention of the judges' age, political bent, childhood background, religious inclination, or other factors. In that respect, the judges' motivations remain a mystery, and only another dedicated examination of the facts could uncover a pattern rooted in ideology. At the very least, the study gives a sense of how suspects would fare throughout the country, and where it would be most unlucky to be caught with drugs or committing a white collar crime. Here in the Western District, the lowest median drug sentence is 12 months, the highest 92 months.

The situation is ironic. The Federal Sentencing Guidelines continue to carry much sway, despite the fact that they failed to meet their objective. The Sentencing Guidelines were set up as part of the Comprehensive Crime Control Act of 1984. They consist of a sentencing grid with 43 levels, four zones, and criminal history. Although the sentences that have resulted from the Sentencing Guidelines could be drastically different for similar crimes (such as the difference between crack cocaine and powder cocaine possession), it has been overlooked so long as the Sentencing Guidelines as a whole made the judges more consistent.

The number of people trying to smuggle illegal drugs across the U.S.-Mexico border every day may include Texas government officials. El Paso County Commissioner Guillermo "Willie" Gandara Jr. was indicted for conspiracy to possess with intent to distribute 50 kilograms of marijuana, as well as possession with intent to distribute. Gandara had previously condemned efforts to legalize marijuana, claiming that he supported "keeping marijuana out of the hands of kids and keeping marijuana proceeds out of the hands of cartels."

Gandara was arrested during a routine traffic stop at the Sierra Blanca border checkpoint. In addition to the conspiracy charges, he stands accused of going by the alias "Godfather" and maintaining property in El Paso for the purpose of distribution since November 2010. Gandara has appeared at the federal court in El Paso and now sits in an El Paso County jail without bond. Gandara's family is well known in El Paso, with his father and brother both having served on the school board or city council. Worth noting is that Gandara's father and brother are no strangers to accusations of law breaking and betraying the public trust. Willie Gandara Sr. was recalled as mayor of Socorro in May 2011 after being indicted in a public corruption investigation, while last month, Jesus Gandara became part of the "largest public corruption case in its history" as a superintendent in San Diego, California. If Gandara Jr. is found guilty, he faces up to 20 years in federal prison for each charge against him.

The Gandara family may be a unique case, but Gandara Jr.'s arrest has raised the question of how many other Texas public officials could be involved in the drug trade. Some have speculated that Mexican drug cartels like the Zetas and Sinaloa could have more public officials on their payroll.

In a situation like this, many would praise the Border Patrol's actions and claim that justice is served. A public official was subjected to the same search and seizure tactics as everyone else. And if the Border Patrol must pull someone over and arrest him at a checkpoint, isn't it right that it should be for the offense of smuggling large quantities of drugs rather than for having a personal stash in the glove compartment?

All of this may be true -- Gandara is innocent until proven guilty, and is entitled to representation by a criminal defense attorney -- and yet it still does not change the Border Patrol's fundamental problems. For all of the large-scale smuggling operations Border Patrol agents have successfully broken up, there are cases where the Border Patrol arrests individuals with negligible amounts of drugs who are otherwise law abiding. Is each success worth the cost of forcing countless people to defend themselves in an overcrowded court system?

Over the past several years, use of synthetic drugs -- especially synthetic marijuana -- has been on the rise. Even though 40 states, including Texas, banned synthetic marijuana, recent news on synthetic drugs shows that there is no sign that teens intend to stop using it. As a result, in March 2011, the Drug Enforcement Administration (DEA) moved to ban the chemicals for making synthetic marijuana for at least one year. Now the House and Senate are in the process of making synthetic marijuana use a federal crime. The House passed a ban late last year on a 317 to 98 vote, while Senate passage is currently being blocked by Senator Rand Paul (R-Kentucky). With so much activity surrounding synthetic marijuana, it is worth taking a look at what it is, how it started, and whether it is worth such alarm.

Synthetic marijuana goes by multiple names, including K2 and Spice. It first appeared in gas stations across the United States in 2006, being sold as tea, incense, or herbs. Although manufacturers claim that synthetic marijuana consists of medicinal herbs that combine to create a "mild" hallucinatory effect, studies show that the herbs are actually sprayed with chemicals to create the effect similar to marijuana. It is likely that synthetic marijuana came into being because its manufacturers thought it could skirt prohibition laws by posing as something natural and even healthy.

However, evidence is mounting that synthetic marijuana is far worse than ordinary marijuana. While marijuana remains in your system for a relatively short amount of time, the effects of K2 or Spice remain in your brain and organs longer. Marijuana combined with alcohol has a very mild effect, while synthetic marijuana combined with alcohol can make people extremely ill. Some side effects of synthetic marijuana that you would not find in ordinary marijuana include vomiting, seizures, and trouble breathing. In the first 10 months of 2011, poison control centers handled 5,741 calls about synthetic marijuana, nearly double the calls received in 2010. Worst of all, synthetic marijuana has been linked to psychosis (while the psychosis effect of marijuana remains inconclusive) and suicidal thoughts.

Since synthetic marijuana only became popular six years ago, its long-term effects remain unknown. Still, it is safe to conclude that all of the concern about synthetic marijuana is warranted. Even so, lawmakers need to move cautiously in banning the substance nationwide. Senator Paul and other Senators raised a valid concern that a new law could interfere with legitimate pharmaceutical research, as well as send plenty of otherwise law-abiding users to prison. Federal criminal defense attorneys already have their hands full defending cases of regular marijuana use, let alone cases of synthetic marijuana use.

Also, even if certain synthetic marijuana compounds are banned (which seems inevitable) on the federal level, there will always be experimentation to arrive at new compounds that create the hallucinatory effects of marijuana. Meanwhile, this entire situation just highlights how inoffensive ordinary marijuana is by comparison. It makes one wonder if the best solution wouldn't just be to legalize marijuana, which would automatically make all of these synthetic drug combinations irrelevant.

At the Sierra Blanca border checkpoint, and at other areas along the United States-Mexico border, vehicle searches and seizures for illegal immigrants or drugs are common occurrences. However, there may be less of a reason for a Border Patrol agent to pull over a vehicle these days. Border apprehensions of illegal immigrants have dropped to just 340,252, one-quarter less than the numbers in 2010 and one-fifth the number of apprehensions in 2000.

Border Patrol officials believe that fewer apprehensions may be due to fewer attempts to cross the border. This may be due to a variety of factors. One factor, of course, is the beefed-up presence of the Border Patrol. This past year, the number of Border Patrol agents reached its highest number ever -- 21,444. The heightened presence has led not only to the greater likelihood of apprehension, but has led to the biggest crackdown on illegal drugs to date: nearly five million pounds of narcotics were caught at the border, an increasing of 20% over 2010. Many people south of the border believe that the heightened presence of Border Patrol agents has made getting smuggled into the country more dangerous than ever, so many don't try it.

Another reason is due to the poor shape of the U.S. economy. Many people who enter this country illegally pay smugglers up to $3,000 to take them across the border. The danger and expense don't seem worth it if there isn't a job on the other side. Add in the fact that the Mexican side of the border has been caught up in drug violence, and the risk may simply be too big to take. Finally, the Mexican economy is actually doing fairly well at the moment, and the overall birth rate in Mexico has declined, creating less of a need to move to the U.S. for a better life. So all of this combined has led to a reduction in illegal border crossings. Still, the number of illegal immigrant apprehensions remains highest in southwestern states, with the biggest hot spots being Arizona (129,118), Texas (118,911), California (72,638) and New Mexico (6,910).

These numbers are likely to convince the Border Patrol that it is on the right path in terms of cracking down on drugs and illegal immigrants. That is not necessarily encouraging when you consider that the Border Patrol's tactics are often heavy-handed and not always lawful. While there have been some encouraging attempts to place limits on the Border Patrol's scope -- such as by preventing them from investigating transit stations without knowledge of a clear threat -- it isn't enough. Too many Border Patrol agents are stopping cars at the border based on prejudice or a hunch -- neither of which amounts to a "reasonable suspicion," the legal standard required. They then come up with a post hoc rationale once they find the evidence that they were looking for -- drugs or people being smuggled. Many of the people they arrest are then taken to the local jail, where it is up to an experienced federal criminal defense attorney to defend their rights.

At a time when it seems as though the Border Patrol's powers are ever expanding, one limit has finally been put in place: Border Patrol agents no longer get free rein to visit airports and other commercial hubs.

It used to be that if a Border Patrol agent suspected drug smuggling or other illegal border activity, they could visit any airport, bus, or train station where the suspect might be. However, this past October, the Border Patrol implemented a policy that prevented agents from visiting commercial hubs unless they had "intelligence indicating a threat." This policy began along the northern border of the United States, but has now been extended to some sectors along the southern border, including the El Paso sector, which includes part of western Texas.

Officials at U.S. Customs and Border Enforcement, which oversees the Border Patrol, state that this will allow the agency to use its resources more effectively. Local "field commanders" would analyze the intelligence to consider threats and risks and are send out to "mitigate these threats accordingly, using a variety of enforcement techniques." One also senses that this system is in place to promote greater accountability. One spokesman stressed: "There has to be op orders drawn up. It has to be run up the chain of command, sometimes almost all the way up to D.C."

Of course some don't like the changes, particularly the National Border Patrol Council. The Council is a labor union that includes former Border Patrol agents. The Council complains that the latest policy is designed to "handcuff the effectiveness of Border Patrol agents" at performing searches and seizures. Because of "bureaucratic red tape," Border Patrol agents cannot get authorization to operate in certain areas, giving criminals "a free pass to exploit these transit systems."

Yet if you asked people at transit hubs in Texas, you might find that the new policy has made very little difference. Employees at a Greyhound bus terminal in Laerdo, Texas claimed that Border Patrol agents still regularly appeared. One passenger noted that they gave him a "bad feeling," even though he was a citizen and otherwise law abiding.

Medical marijuana has been in the spotlight this past month, with a focus on its shaky legality. One of the main reasons is because the federal government, which was tolerant of state medical marijuana laws for the past couple of years, has started cracking down in California. Federal government officials argued that they were only targeting those who took advantage of the medical marijuana law to sell the drug for profit. Now advocates of medical marijuana are suing the federal government.

Anti-medical marijuana states such as Texas are no more tolerant of other states' medical marijuana laws than are the Feds. Under Article IV of the U.S. Constitution, the "Full Faith and Credit Clause," states have to respect the "public acts, records, and judicial proceedings of every other state." However, there are limits to this respect -- such as if the laws of one state conflict with the laws of another state. Therefore, states do not necessarily need to apply another state's conflicting laws when deciding issues to which their own laws speak. Here in Texas, this has meant direct conflict with other states with medical marijuana laws, and with "prescriptions" written by doctors in California or Oregon or other states in which marijuana is prescribed legally.

Section 481.116(a) of the Texas Health and Safety Code states: "Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice." Penalty Group 2 under the Code includes certain forms of marijuana. Someone who commits an offense under Section 481.116(a) faces punishment ranging from a state jail felony to imprisonment in the institutional division of the Texas Department of Criminal Justice for life-- depending upon the amount of drug in possession. It has been my experience that California medical marijuana tests out as hashish-a second degree felony in Texas.

Texas prosecutors claim that Section 481.116(a) prohibits all possession of marijuana -- even if it was obtained through a valid prescription in a state where medical marijuana is legal, such as California or Washington. Therefore, if a police officer found medical marijuana during a vehicle search and seizure, the owner would be left alone in California, but would be treated just like someone using recreational marijuana in Texas. Yet does Section 481.116(a) really criminalize prescription marijuana from states where it is legal? Given that Texas itself does not legalize medical marijuana, could its silence imply that Section 481.116(a) criminalizes out of state prescriptions?

So far, evidence suggests overwhelmingly that the Texas approach is to prosecute people with medical marijuana. Last year, for instance, two Texans were charged with felonies for possession of medical marijuana in hash and pill form from a California dispensary. One suffered from severe asthma, while the other was a quadriplegic. Meanwhile, Texas legislators have successfully banned K2, a synthetic substance similar to marijuana.

Most experienced federal criminal defense attorneys deal with their fair share of illegal vehicle searches and seizures. In Sierra Blanca, near the United States-Mexico border, most of these searches and seizures come in the form of Border Patrol agents stopping vehicles and seizing drugs and other property inside without justification. These searches violate the Fourth Amendment and a good attorney can often get the evidence thrown out in court. However, what if the one that violates the Fourth Amendment is your car's GPS system? The Supreme Court will have to decide after it hears arguments on United States v. Jones November 8th.

The main issues in United States v. Jones are whether the Constitution permits police officers to install a tracking device in someone's car without first getting a warrant or the car owner's permission, and whether police can legally follow a car's location through the tracking device. In Jones, the facts are as follows: in 2004, a Safe Streets Task Force of the FBI and the Metropolitan Police Department began investigating Antoine Jones, owner of a Washington, D.C. nightclub, for cocaine trafficking. After trying several different surveillance techniques, the agents got a warrant from a federal judge authorizing them to covertly install a GPS system on Jones's car. The warrant authorized the agents to install the GPS system within 10 days and only within the D.C. area, but the agents waited 11 days and did not install it until Jones's car was parked in a public parking lot in Maryland.

The GPS system gave accurate information on the car's whereabouts within 50 to 100 feet and generated information only when the car was moving. The GPS system provided data about the car's location, but not about the car's driver or any of its passengers. Using the GPS system and other surveillance information, agents were able to track Jones to a Fort Washington stash house. After obtaining warrants, they uncovered $70,000 from Jones's car and large amounts of cocaine, firearms, and other drug-related goods. Jones was charged by a federal grand jury with conspiring to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of federal law. Jones sought to suppress evidence obtained through the GPS system.

It's easy to say that any tracking system installed in someone else's car without their knowledge is bad, but the facts show that circumstances are a little more muddled. Police used other (supposedly legal) methods of obtaining information, and did get a warrant before installing the system (even if they basically ignored its restrictions). On the other hand, for police to go to the act of installing a device on your vehicle seems like a great intrusion -- too great.

The Supreme Court has been tolerant of tracking devices in the past, namely in United States v. Karo, where it stated that a beeper in a can did not constitute a search and seizure. However, in Karo the can was accepted knowingly and brought into the house, while the agents installed the GPS system without Jones ever being aware. It would be nice for the Supreme Court to take a hard line against tracking devices, in a pushback against ever-eroding privacy standards. However, this Supreme Court over the past several years has been far too willing to erode personal liberties in the face of security.

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.

Recent news headlines have reported the Hudspeth County judge's refusal to allow Willie Nelson to plea to a lesser charge on his pot bust in Sierra Blanca, Texas, the notorious border patrol stop on Interstate 10 about 100 miles east of El Paso.

County Judge Becky Dean Walker, who is not a lawyer (quite common in small counties) is entitled to reject a plea just like any other judge; however, she may not impose a sentence on her own. Rather, she must allow the Defendant to withdraw his plea and the case goes back on the docket.

Kit Bramblett, the County Attorney, told me that he recently took the case to the Justice of the Peace and filed it as a Class C misdemeanor, the lowest misdemeanor in Texas, for the same fine amount he had previously recommended to Judge Walker, who had rejected it. A County Judge can hear a class C at the court's discretion; in this case, Judge Walker rejected the plea offer, and Mr. Bramblett just walked it over to the J.P. and filed it in the lower court, which is set up to take care of traffic tickets, bad checks, and, in this case, the one of greatest entertainment personalities in the world.

Willie may pay the fine just like a traffic ticket. His presence in court is not required.

The lesson here is that a judge cannot tell a prosecutor what to charge or how to charge; all a judge can do is accept it or reject it. In this case, the County Attorney had the option of taking the case to a lower court, which is exactly what he did.

Sources:

Willie Nelson plea rejected in Marijuana Possession case

In what signals a welcome trend, Texas is closing down its first prison. Not only will the state close down the Central Unit in Sugar Land, but it will also shutter three juvenile detention centers. The reasons have to do with budget cuts, as well as a shift from prosecution to rehabilitation for drug use.

In 2005, Texas began to make changes to its sentencing procedures, shifting money the from tough-on-crime approach to rehabilitation and prevention programs. This slowed the number of incarcerations and led to a 12.8% drop in the number of violent crimes since 2003. Since then, the state has seen its crime rate drop to a 38-year low and has saved $2 billion that would have otherwise been spent on building new prisons.

By closing Central Unit and the juvenile detention centers, Texas has become part of a national trend of prison closure. The Central Unit closure in particular has a special significance. Opened in 1909, it was made famous in the folk song "Midnight Special" sung by inmate Huddy "Lead Belly" Ledbetter. Lyrics include "you'd better walk right" or else "Benson Crocker will arrest you, Jimmy Boone will take you down" and "you're Sugar Land bound." Since Central Unit's opening, the surrounding farmland has been replaced by suburban neighborhoods. Since prisons and suburbia don't mesh, the prison's days were numbered. Lawmakers finally decided to close it to save $25 million over two years.

It is exciting to see that Texas's new approach is paying off. A Texas criminal defense attorney knows how frequently clients' freedom can be taken away based on trivial crimes. The state and federal sentencing guidelines have traditionally been tough on repeat offenders, even for nonviolent crimes. Texas's juvenile justice system has often served young people poorly, ignoring constitutional protections and punishing them harshly for minor crimes. Furthermore, prison time is hardly the deterrent that many tough-on-crime advocates believe it to be. People who go to prison often become hardened and are highly likely to return to crime once they are released. Meanwhile, prison conditions can be highly dehumanizing. In Brown v. Plata, the U.S. Supreme Court ruled in favor of federal judges who found that California's overcrowded prisons violated the Eight Amendment ban on cruel and unusual punishment. These judges had ordered the release of 46,000 inmates. While no one has suggested that Central Unit's conditions were so brutal, the prison's age was making it more expensive to maintain. Its 900 inmates have been transferred to other facilities.

There has been so much dismal news about criminal suspects -- usually about how their rights have been chipped away little by little. To hear that Texas is making progress by using a less punitive approach is very welcome news indeed. Coupled with the news that states across the country are rethinking their sentencing guidelines, maybe it is finally safe to say that lawmakers are turning away from the tough-on-crime approach for good. That is something that in the long run could benefit Texans and the country as a whole.

Willie Nelson was in the news again recently. As reported several months ago, the famous country singer was arrested in 2010 after a Sierra Blanca checkpoint search and seizure for possessing six ounces of marijuana. He was later charged with a misdemeanor. Most people in his position are turned over immediately to the Hudspeth County Sheriff's Office, where they might remain in the Hudspeth County jail for 48 hours before seeing a Justice of the Peace and having a bond set.

Nelson recently sought a plea deal, where he would plead guilty to the violation and pay a $500 fine for possession of drug paraphernalia. When the prosecutor floated this idea to Hudspeth County Judge Becky Dean-Walker, she rejected it. Willie Nelson shouldn't get special treatment, she said- claiming that County Attorney Kitt Bramblett wouldn't make this deal with anyone else. In fact, my experience has been that most people with a good lawyer don't end up with jail time, but rather pay a hefty fine and face conviction for a class B misdemeanor.

In Nelson's case, the ball is still in Bramblett's court, because it his responsibility to prosecute misdemeanors in Hudspeth County. That is, it is the County Attorney's job to see to it that the prosecution moves forward -- if not, the case could be dismissed in a few years for lack of prosecution. However, the notoriety of Willie Nelson's arrest makes that prospect a remote one indeed.

The continuation of Willie Nelson's story comes at an interesting time. The federal government recently declared that marijuana has no health benefits. The Department of Justice claimed that "marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision." This might come as a surprise to medical marijuana users in California and the 15 other states that have made it legal. A decade ago, medical marijuana supporters asked the federal government to reclassify cannabis, claiming that it helped treat glaucoma and ease the side effects of chemotherapy. In its latest decision, the government claimed that marijuana had "no accepted medical use" because no adequate studies had been performed of its health benefits. Well that settles everything.

The federal government is in an increasingly awkward position. For decades, it has been locked into the mentality that no drug is a good drug. Mild drugs like marijuana are just a gateway to more lethal drugs. Yet among the general public, acceptance of marijuana use is growing. Many of those who have smoked marijuana during a serious illness have testified to its benefits, while managing to not become serious drug abusers in the process. Many of those caught at border checkpoints like Sierra Blanca or in police raids on their homes did not pose a danger to anyone else. They were not violent or psychotic -- not even Willie Nelson. Yet the Drug Enforcement Administration and the Department of Justice can't just give up decades of strongly held belief. It is easier to force people who dabble in drugs to hire a federal criminal defense attorney to keep them out of jail than to rethink their punishment.

This is not to say that marijuana is harmless and we shouldn't be cautious. Marijuana can have harmful effects on an individual -- but about how many over-the-counter and prescription drugs could we say the same? Studies crop up all the time showing how seemingly "safe" (DEA-approved) drugs harm our bodies. Before too long, there will be a study proving that illicit drugs are safer than some of the most common prescription medicines.