Texas Criminal Lawyer Blog

In his State of the Union address, President Obama announced that a new unit had been formed for the purpose of investigating mortgage fraud and other white collar crimes. The new unit -- led by New York Attorney General Eric Schneiderman, known for taking a tough stand against mortgage lenders -- will have 55 prosecutors, FBI agents, and analysts. Together, they will examine what exactly caused the "massive market failures" that led countless people to lose their homes to foreclosure.

The reasons behind the economic collapse that shook the world are almost too complex to sort out. But one basic storyline is as follows: Mortgage lenders began to engage in subprime lending, or lending to individuals with poor credit histories. They did so at a time when home values were rising quickly. It seemed like a win-win situation: mortgage lenders could reap huge profits while the borrowers could buy the house of their dreams. Often, mortgage lenders pushed "adjustable rate mortgages," where the monthly mortgage payment started low, then eventually increased. When housing prices finally started to drop, borrowers found themselves with higher mortgage payments and unable to refinance to pay off the loan. Families everywhere could not make payments and mortgage lenders started to foreclose. To make matters worse, mortgage lenders had packaged loans together as "mortgage-backed securities" and sold them internationally. When the loans failed, the securities became worthless and many of the investment banks that bought them collapsed.

Today many people are still defaulting on their mortgage payments and mortgage lenders are foreclosing on their houses. Many claim that mortgage lenders are going so far as to commit mortgage fraud in order to swindle people out of their homes. Mortgage fraud is a federal crime that consists of a misstatement, misrepresentation, or omission that goes to the heart of the agreement. It isn't just a small oversight -- like saying the monthly payment is $995 when it is actually $1,000 -- but a misrepresentation that intentionally led the borrower to believe something that wasn't true, and to act on that belief. Mortgage lenders have been accused of falsifying information on home loan documents, without the borrowers' knowledge, in order to make it easier for the borrower to get the loan, only to turn the tables once the borrower (inevitably) defaulted.

While the mortgage lending industry desperately needs to be kept honest, for its sake and that of the general public, we need to be careful not to assume that mortgage lenders are always dishonest and after your house. The unfortunate truth is that while there were unscrupulous lenders, there were people on both sides who believed the hype -- that home prices would rise forever and ever and no loan bore too much risk. With hindsight, we can say that that attitude was foolish, that is still far different from peddling mortgages that the lender knew the borrower could not afford. It shouldn't be a reason to hire a criminal defense attorney.

Furthermore, mortgage lenders often don't want to foreclose upon a house. It often involves long months of litigation, while the mortgage goes unpaid. Then, when they try to sell the house, it goes for far below its original value. So while the new investigation unit is long overdue, one hopes that they are able to keep things in perspective -- not lump the foolish in with the truly criminal.

When you think of cyber crimes, several stand out. Cyber pornography. Sending malware to destroy businesses' and individuals' computers. Cyberbullying. Identity theft. Stealing information from people's computers. But does downloading information without paying for it really deserve to be lumped in with the others as a federal crime?

Yes, according to the entertainment industry, which has long been at war with downloaders. One of the first major salvos in the war was the lawsuit against Napster, the first online file sharing service, in 1999. The eventual trial (outcome in 2001), considered whether and how Napster had violated copyrights established under the Digital Millennium Copyright Act. Napster's services involved free file sharing -- especially music files -- and downloading. Napster eventually shut down to comply with an injunction, and new filing sharing services such as Grokster flocked to take its place. Other lawsuits followed -- the Recording Industry Association of America (RIAA), in particular, filed 35,000 lawsuits against individual downloaders between 2003 and 2008.

For a while, services that offered cheap downloads, such as Apple's iTunes, seemed like the solution to the problem. Artists could get paid and consumers hungry for content could have it quickly. But authorized services can't always keep up with consumer demand (consider that it took until 2011 to put Beatles albums on iTunes), especially if the demand is for obscure material that isn't sufficiently "commercial." So downloading persists, and the entertainment industry, in tandem with state and federal government, tries to think of ways to crack down.

The latest effort is the Stop Online Piracy Act, currently working its way through the House Judiciary Committee. The bill would expand the powers of federal law enforcement and copyright holders to go after anyone who violated copyright laws or sold counterfeit goods online. Supporters claim that the Act is exactly what is needed, since other efforts have not stopped the flood. We have copyright laws for a reason: so people who create a work of art can, for a period of time, be the only ones to benefit from that creation. What would motivate people to create and sell their works if they could just be stolen and used without the creator's permission? People who want content should just pay more, rather than expect to have everything they want, when they want it, for free.

The counter arguments are that copyright laws in this country don't conform with the current reality. For too long, entertainment companies controlled how and when people received a product. So if you wanted one song, you needed to pay for the whole CD. If you wanted to watch an obscure film from your childhood, you needed to wait until one of the entertainment companies remembered that it existed and put it on video. Now, you can find the most obscure content easily because someone else has put it online. Artists long forgotten are suddenly talked about again, and inspiring other people to create their own works. Should people pay huge fines and go to jail for that? Should file-sharing websites like YouTube have to carry the burden of checking every single file once it is uploaded? Should college students have to hire criminal defense attorneys just for sharing music?

As it stands, the Stop Online Piracy Act is winning few friends and plenty of critics. One such critic came in the unlikely form of Republican Congressman Darrell Issa, who called the Act unconstitutional. He stated: "SOPA was ill-conceived, written in Hollywood, and included all kinds of things that physically can't be done, including the DNS blocking." To placate critics, the House has already stripped out the Domain Name System (DNS) blocking provision, which would have required ISPs to block overseas websites accused of piracy.

Even if the Stop Online Piracy Act is enacted, the issue of illegal downloading will surely be with us for years to come. Both sides have some merit, and it remains to be seen which side (if any) prevails.

Congressmen from Texas vow to tackle security issues in 2012, specifically border security and cyber space protection. They intend to introduce a bill to the House Homeland Security Committee that would add new technology to the border patrol, such as unmanned aerial vehicles, as well as standard airplanes and helicopters.

Congressmen such as Lamar Smith and Francisco Canseco argue that the bill is necessary because "only 44 percent of the Southwest border is under operational control of the Border Patrol." They criticize the Obama administration for reducing the number of National Guardsmen along the 2,000-mile border shared with Mexico.

Meanwhile, Texans in Congress are also hoping to advance a bill that heightened security over the Internet. Texas is home to several important government institutions and private groups, including the 24th Air Force and the University of Texas at San Antonio, which make security their business. Congressmen want to continue protecting sensitive information that the federal government stores online, and to make sure that "no enemy ever turns the Internet against the United States."

The cyber space security bill would create a quasi-governmental entity to oversee any information shared with the private sector. Private firms would be encouraged to share information on cyber threats without mandating new security measures. The Department of Homeland Security would evaluate all cyber space security risks and then determine the best way to mitigate them.

While the concern of Texas congressmen is heartening (and of course none of it has to do with the fact that San Antonio gets an economic boost from greater cyber space security measures), as usual, the legislation has the potential to go too far if Congress isn't careful. For one thing, there is the question of why the border needs so much more security when the number of crossings has plummeted, and there is no real evidence that violence from Mexican drug gangs has spilled over into the United States. If the southern border is as vulnerable as the Texas congressmen claim, why haven't there been more instances of terrorists smuggling bombs, biological chemicals, or other weapons across it? Who is to say that if they chose to, they couldn't do so even with greater security measures in place?

Cyber crimes represent a challenge for prosecutors and criminal defense attorneys alike. They are forever pushing the boundaries of cyber space and brushing against the line between free speech and criminal acts. It is easy for innocent net surfers to be caught in an investigator's net, just as it is easy for many cyber criminals to evade detection.

A recent decision in a case of Twitter "cyber stalking" demonstrates the challenge of defining what makes a cyber crime. William Lawrence Cassidy, a resident of California, began posting thousands of messages about a Buddhist religious leader named Alice Zeoli who lived in Maryland. Cassidy was once involved with Zeoli on a romantic and professional level. After their relationship went sour, Cassidy began posting on Twitter under numerous pseudonyms, leaving cheerful messages such as: "Do the world a favor and go kill yourself." Cassidy was later charged with violating a federal stalking statute. However, a federal judge in Maryland, Roger Titus, ruled that Cassidy's messages were speech protected by the First Amendment.

Although Cassidy's speech may have caused substantial emotional distress, the judge wrote, it covered time-honored First Amendment subject matter such as anonymous "uncomfortable" speech addressing religious issues. Judge Titus drew an analogy between a modern-day blog and a bulletin board during colonial times. A blog was like a bulletin board that a person in those days would have put in his front yard. If a colonist wanted to see what was on a neighbor's board, he or she had to go over and look at what was posted. A Twitter post was like news from one colonist's board showing up on another colonist's board. The other person could simply turn it off and "disregard" the message. It lacked the impact of a telephone call or email that is directed at a specific person.

Whether or not the analogy works (and it's debatable), the bottom line is that Judge Titus thinks that Cassidy's behavior is not stalking, with the intent to harass and cause substantial emotional distress. Cassidy's behavior was venting -- in perhaps some very nasty ways, but still ways that do not amount to a criminal act.

This episode just demonstrates, as a law professor from University of California at Los Angeles noted, that there is very little case law surrounding cyber stalking. Many believe that the Cassidy case will set the tone for cases to come. It is heartening to see that at least some case law will take the position that free speech on the Internet is important, even when it's the kind that no one wants to defend.

Maybe the term "white collar crimes" needs to be changed, to something like "blue-and-red collar crimes." That's because white collar crimes are branching out -- or rather, other groups are branching into crimes once thought to be limited to business executives in their offices. Recently, it was revealed that national gangs like the Bloods and the Crips are committing their drive-by shootings through cyber space crimes that are white collar in nature.

Both gangs have increasingly committed financial cyber space crimes that not only threaten Corporate America, but also pose a risk to the rest of us. Their white collar schemes range from mortgage fraud to counterfeiting to identity theft to credit card fraud. These crimes offer less risk than "traditional" crimes like murder and drug trafficking -- and the reward is potentially much greater.

The FBI warns that besides the Bloods and Crips, other gangs like the Latin Kings and Aryan Brotherhood are getting involved in online white collar crimes. More importantly, these gangs are growing in size, as they purposely go out and recruit people with high-tech computer skills. The gangs have even been recruiting through social network sites like Facebook and Twitter. (One would think that people with high-tech backgrounds would know better than to tangle with the Bloods and Crips, but in this economy, maybe any job is better than none.) FBI agents claim that some of these criminal gangs are as large and sophisticated as any corporation. That sounds a bit rich, but it is an indication that gang activity has gone beyond the smash and grab punch -in -the -mouth tactics of pre -cyberspace days.

These reports serve as a reminder to never let your guard down when you are online. If a complete stranger claims that you will win a big prize if only you provide personal information like your birth date, Social Security number, or mother's maiden name, you will probably just hit the delete button. On the other hand, not every white collar crime is a big and sophisticated scheme run by a conspiracy of gang related thugs. A criminal defense attorney may defend many small white collar suspects who simply misunderstood their situations. For instance, there have been several cases where a suspect in a cyber chat thought that he was talking to someone of legal age; or cases where the suspect was just a mid-level manager doing work that his superiors wanted him to do, not realizing that the work was fraud. Then there are cases where the suspect was not even involved with the crime. On more than one occasion, people who use shared computers have been accused of crimes they knew nothing about. That is because the computer's ISP just records that the computer was being used at a given time -- not who was using it. Therefore, your nice but secretive uncle who came to visit for two weeks and used your computer late at night might never be charged, but you might not be so lucky.

And then there are white collar suspects who -- it turns out -- masterminded big schemes and were completely aware of their illegal activity, like members of the Bloods and Crips. Believe it or not, even those suspects have the right to be represented by a defense attorney in a criminal trial.

Judges are supposed to make decisions on federal crimes, not commit them. Yet Judge William Adams, a county court judge in Aransas County, Texas, very nearly did. The judge got into some serious trouble when his 23-year old daughter, Hillary, posted a video on YouTube of some family bonding from 2004. Only instead of bonding, the video footage showed Judge Adams lashing his then 16-year old daughter with a belt as she begged him to stop. Within a few days, the video got more than four million views.

Judge Adams responded with the maturity that one would expect of someone in his position. When confronted with the video evidence, he claimed that his daughter was trying to get back at him for reducing her financial support and threatening to take away her Mercedes. The Aransas County District Attorney investigated the matter and concluded that the Texas statute of limitations had already expired. He claims that he would have pressed charges if that hadn't been the case. That meant that the only way Judge Adams could be prosecuted for a crime was if a U.S. attorney pressed charges. After viewing the video footage, the U.S. attorney's office found that no federal crime had been committed.

Ironically, the judge oversaw a lot of juvenile abuse cases. The Texas Department of Family and Protective Services, which is conducting its own investigation, has asked that he be removed from hearing these cases until the investigation is concluded. Judge Adams is already taking a two-week leave, while an interim judge has come in to hear all of his cases.

It's never pleasant to read stories about judges behaving badly. At least this judge seems to have kept his darker side private -- unlike a certain judge in Pennsylvania who abused his position at the expense of dozens of young people who appeared before his court. Still, it does raise the question of whether a judge who commits violence in private is an unfit judge -- even if his violence is not illegal (under federal law, at least). Judges in general are held to a higher standard because they hold our lives in their hands, so to speak. While many of them began their careers as prosecutors or criminal defense attorneys, when they become judges, they "cross over." Texas judges must abide by a code of conduct, as do federal judges. While the letter of the Texas code of conduct does not prohibit violence against family members, it is hard to imagine that anyone would be able to overlook it. Especially when it could color the judge's view of cases that come before his court every day. So the answer to the earlier question -- is a judge unfit even if his violence does not break laws? -- is likely yes.

At least there is one consolation to the Judge Adams situation. Unlike a federal judge, who can stay in office forever unless he is impeached, Judge Adams must periodically run for office, as Texas judges are selected at the ballot box. If he is not removed or does not resign, his term will be up in three years. And then the voters can choose whether to keep him or kick him out.

Gun trafficking is a serious federal crime -- especially when it is associated with drug trafficking. Under Title 18, Section 924(h), a person who knowingly transfers a firearm, "knowing that such firearm will be used to commit a crime of violence (as defined in subsection (c)(3)) or drug trafficking crime (as defined in subsection (c)(2)) shall be imprisoned not more than 10 years, fined in accordance with this title, or both." (The laws could get tighter if specific legislation aimed at stopping gun smuggling to Mexico is passed.) The Bureau of Alcohol, Tobacco, and Firearms (ATF) also prohibits illegal purchases of firearms over the Internet. Yet because of weak state laws, firearms often travel freely from state to state without repercussions.

Here in Texas, gun laws tend to be on the weak side. Most rural Texans have some sort of firearm aboard, and get hopping mad when challenged about their right to have whatever gun they choose wherever they choose to have it. This is in sharp contrast to California, where the governor just signed a law banning the open carrying of weapons. What researchers have found is that because of the discrepancies between states, guns tend to flow from states with weak gun laws to states with strong gun laws. In New York, for instance, it was discovered that two out of three guns found were purchased in other states. While federal law prohibits selling guns to felons, it's not so difficult to find a gun show where gun sales are largely unregulated. Gun regulation has become even harder since the Supreme Court decision District of Columbia v. Heller. The result is that a lot of guns from unregulated states commit crimes in the regulated states.

No federal criminal defense attorney can view unchecked gun smuggling as a good thing -- even if he or she represents clients involved in gun crimes. First, the obvious reason: guns commit crimes and cause death. Maybe not so much in border cities, but definitely in cities like Austin and Houston. Another reason is -- if you live and commute along the United States-Mexico border -- it gives Border Patrol agents another reason to search your car. As this blog has stated repeatedly, if Border Patrol agents have a reason to look for something, they will find a way to do it illegally. That is not to say that Border Patrol agents always conduct illegal searches, but they do it frequently enough to provide a criminal defense attorney with a lot of business. Border Patrol agents need to have a "reasonable suspicion" in order to stop a car going across the border, and "probable cause" to search. This includes highway stops considered "functional equivalents" to the border, like the much publicized Sierra Blanca checkpoint .Yet too often agents will invent reasons like these. If Border Patrol agents suspect you are smuggling firearms along with drugs, they will stop your car.

Contrary to the tone of this article, however, most Texans are not smuggling firearms anywhere--they are simply exercising their right to carry a pistol or rifle when traveling the roads of the state. And they take that right seriously.

The research done on gun smuggling throughout the states shows that greater cohesion might be needed in order to prevent more crime. When neighboring states have comparable laws, the smuggling tends to occur less frequently. In the case of Texas, since all of Texas's neighbors have weak gun laws, fewer guns are smuggled from Texas into other U.S. states than one might think. (Mexico, however, is a different story.)

Most Texans, however, keep their guns to themselves, or as the old law used to say," on or about their persons, or in their saddlebags."

The Supreme Court has started its latest term, and one of the first items on its agenda is whether prisoners have Miranda rights.

As this blog noted earlier, Miranda v. Arizona turned 45 this year. It enshrined the Fifth Amendment right to receive a warning before being interrogated by the police: "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 speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be appointed for you." The idea is to prevent an individual from saying something incriminating that could put him or her behind bars.

But what if you are already in prison for a state or federal crime? Does a Miranda warning still have any relevance, or do the convicted leave their Fifth Amendment right at the jailhouse door? That is what the Supreme Court will consider after October 4th arguments on Howes v. Fields.

In 2002, Randall Lee Fields was convicted in Michigan of two counts of third-degree sexual conduct. He was sentenced to 10 to 15 years in prison. Before trial, Fields sought to suppress an incriminating statement that he made to police while in a county jail on an unrelated charge. A police officer had taken Fields into a conference room in the sheriff's department to answer questions. Fields was wearing a prison uniform, but was not handcuffed or restrained in any way. Without first reading him his Miranda rights, two sheriff's deputies proceeded to question Fields for seven hours about his relationship with a minor. Fields was told that he could leave at any time, but he felt that he had to stay and answer. Fields never asked for an attorney or to be returned to his cell.

His motion was denied and the incriminating statement was brought in as evidence. Fields made a federal appeal, and his case was eventually heard by the Sixth Circuit Court of Appeals. The Sixth Circuit found that the state court decision was contrary to Mathis v. United States (1961), which created the rule that "a Miranda warning is required whenever an incarcerated individual is isolated from the general prison population and interrogated . . . about conduct occurring outside of the prison." Just last year, the Supreme Court found in Maryland v. Shatzer that an inmate removed from his cell and interrogated about an unrelated crime should have a Miranda warning.

If you need a reason to believe drug smugglers deserve a fair trial like anyone else, this is the story for you. A number of people have been used as unwitting vehicles to smuggle marijuana, cocaine, and other drugs across the Texas border into Mexico and vice versa.

For example, Ricardo Magallanes, a United States citizen and El Paso college student, was crossing the border into Mexico when the U.S. Border Patrol stopped his car and performed a search and seizure. The Border Patrol agent found 112 pounds of marijuana that had been stuffed into duffle bags sitting in his car trunk. Magallenes was shocked to learn about the marijuana and terrified about his fate. "I was wondering if I was going to spend years and years in prison." The same thing happened to Jose Molina, a Mexican citizen with a long employment record and clean criminal history. He was given a free bus ride across the border to Houston; in exchange, he brought some saddles through U.S. customs. It turned out that the saddles were filled with cocaine worth $20,000.

Over and over, respectable people who crossed the border every day to earn a living were arrested for possessing drugs that they never knew were there. Of the five people arrested in El Paso, one was convicted by a jury and two pleaded guilty in order to face a reduced prison sentence.

According to Houston attorney Norm Silverman, "[t]his has been going on as long as there has been smuggling." For a drug trafficker, having an unwitting courier is the best possible situation because that person won't show the signs of nervousness that could be a tip off to law enforcement officials. The Department of Justice doesn't keep track of how many federal cases involve unwitting couriers. However, 2009 figures show that of the 3,846 defendants charged with drug trafficking in the Houston to El Paso area, 126 were dismissed.

Magallanes was lucky. After refusing to plead guilty, he was convicted by a jury, and would have gone to prison if District Judge David Briones hadn't stepped in. Judge Briones said that there was no evidence that Magallanes knew that the duffle bags were in his trunk. The judge might not have ever voiced his concerns if he hadn't spoken to a colleague who presided over the same situation. The suspect in that case was found not guilty. Judge Briones's suspicion led to a new federal investigation, where a confidential informant finally told the truth about what happened.

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.

The federal government has changed its approach to white collar crime, resulting in fewer criminal prosecutions in the corporate world. The Department of Justice has adopted new guidelines that support "deferred prosecutions": instead of going after a company immediately for wrongdoing, government prosecutors inform the company of the wrongdoing and make them clean it up first. This means that companies do an internal investigation, punish criminal conduct, pay fines, and "achieve these results without causing the loss of jobs, the loss of pensions and other significant negative consequences to innocent parties" in the company.

Though the Department of Justice has shied from aggressive prosecution since 2005, deferred prosecution agreements were not an official alternative until 2008. Naturally critics view it as a way for corrupt corporations to evade punishment. Some claim that it promotes an overly cozy relationship between the government and companies: the companies hire law firms to conduct the investigation and the firms report to the government. They point to one case involving Beazer Homes USA, where the zeal to make a deferred prosecution agreement led the Department of Justice to forcefully end another department's investigation. The Department of Justice first demanded that the Department of Housing and Urban Development not interview anyone at Beazer until its hired law firm had completed its investigation. Then it halted the HUD's investigation once a deferred prosecution agreement had been reached. Others argue that deferred prosecutions aren't useful for cleaning up companies when the executives being asked to investigate are themselves corrupt. Finally, even if the government does decide to prosecute, federal criminal defense attorneys find the charges easier to defend because the government lawyers often lack a thorough knowledge of the evidence, so dependent are they on the companies to investigate.

These are all serious issues, if they represent the norm and not the exceptions. An experienced criminal defense attorney always tries to prove that the evidence does not support a client's conviction; at the same time, it doesn't serve the justice system when the client wins because the government is too incompetent to prosecute a case. Still, the deferred prosecution arrangement as a whole sounds promising. Most people think that those caught up in a white collar crime investigation are already guilty. Cries of "Throw them in jail!" grow louder as the extent of the financial meltdown becomes known. Yet many people charged with a white collar crime are innocent of the charges, or not nearly as guilty as the government contends. But even though their involvement is minor and not worthy of a severe punishment, a government investigation can tie up their lives for months or even years. A system that allows a company to rid itself of corruption is probably more efficient and much less painful.

Of course it depends on company executives at the top being honorable and taking the investigation seriously. When they don't, the government ought to have the independence to step in and do its own investigation. If they can achieve a balance, we just might have a system in place where real corruption is rooted out, while good people are spared from having to spend months in legal limbo.

The U.S. Department of Homeland Security has decided to take a more active interest in cyber crime. Secretary Janet Napolitano has called for joint cooperation with Europe in battling international cyber crime, terrorism, and trafficking.

Cyber crime comes in various forms. Much of it comes in the form of attacks on individuals for financial gain, such as computer intrusion and identity theft. Meaning, someone could access your computer remotely and steal information such as a Social Security number, then use it to access your credit cards and run up an enormous bill without your knowledge. Cyber crimes also consist of Internet pornography and online sex trafficking. Now the Department of Homeland Security is focused on cyber crimes committed by terrorists with the potential to bring down governments.

Napolitano points to recent attacks on the International Monetary Fund, the Central Intelligence Agency, and the U.S. Senate. She notes that most countries lack a legal framework for dealing with cyber crimes, and have not kept pace with advances in online terrorist activity. Government and corporate computer systems may not have the security to withstand an attack.

Without a doubt, some cyber crimes have grown more brazen. Take, for example, the recent arrest of a 19-year old from the U.K., who was accused of bringing down the website for the U.K.'s version of the FBI, and having ties to hackers who targeted the CIA and U.S. Senate. Then there's the fact that cyber attacks are being used as a choice weapon by other national governments. But not everyone accused of a cyber crime is guilty of committing one. It's important to keep that distinction in mind.

Whether in a private home or in public, it is natural for several people to use the same computer throughout the course of a day. When the Department of Justice wants to investigate illegal activity, it may issue a subpoena to an Internet search engine company or an Internet Service Provider (ISP) to provide the online data of all of the users' activities. It can even require that the ISP hold on to the data for as long as two years. As disturbing as it may be to have your activities dissected -- activities that you may no longer engage in, because it was two years ago -- it is even more disturbing when you are charged with a crime that you did not commit. That is because the search engine company or ISP has information about your computer, but not the person who used it. The person who used your computer to commit the crime could have been a passing acquaintance, someone you no longer keep in contact with. Even so, you are charged with a federal crime and must find a strong federal criminal defense attorney to fight the charges.