Don’t Blame the Law of Parties; Blame the Anti-Parties Charge

Texas planned to execute Kenneth Foster by lethal injection yesterday (read Texas prison information on Foster here). But in a rare decision, the Texas Board of Parsons and Paroles recommended in a 6 to 1 vote that the death sentence be commuted to life in prison. The governor, Rick Perry, agreed (read his press release here). So Foster will not be executed but will remain incarcerated for life. (Good article on Texas’s appetite for executions here).

If you are unfamiliar with the facts of Foster's case, the Fifth Circuit Court of Appeals summarized them as follows (read PDF of the opinion):

On the evening of 14 August 1996, Foster and three others-Mauriceo Brown, DeWayne Dillard, and Julius Steen-embarked on armed robberies around San Antonio, Texas, beginning with Brown’s announcing he had a gun and asking whether the others wanted to rob people: "I have the strap, do you all want to jack?". During the guilt/innocence phase of Foster’s trial, Steen testified he rode in the front seat, looking for potential victims, while Foster drove.

Steen and Brown testified to robbing two different groups at gunpoint that night; the four men divided the stolen property equally. The criminal conduct continued into the early hours of the next day (15 August), when Foster began following a vehicle driven by Mary Patrick.

Patrick testified: she and Michael LaHood, Jr. were returning in separate cars to his house; she arrived and noticed Foster’s vehicle turn around and stop in front of Michael LaHood's house; Patrick approached Foster’s vehicle to ascertain who was following her; she briefly spoke to the men in the vehicle, then walked away towards Michael LaHood, who had reached the house and exited his vehicle; she saw a man with a scarf across his face and a gun in his hand exit Foster’s vehicle and approach her and Michael LaHood; Michael LaHood told her to go inside the house, and she ran towards the door, but tripped and fell; she looked back and saw the gunman pointing a gun at Michael LaHood’s face, demanding his keys, money, and wallet; Michael LaHood responded that Patrick had the keys; and Patrick heard a loud bang.

Michael LaHood died from a gunshot wound to the head. The barrel of the gun was no more than six inches from his head when he was shot; it was likely closer than that. Brown had similarly stuck his gun in the faces of some of the night's earlier robbery victims.

Later that day, all four men were arrested; each gave a written statement identifying Brown as the shooter. Brown admitted being the shooter but denied intent to kill. He testified that he approached Michael LaHood to obtain Patrick’s telephone number and only drew his weapon when he saw what appeared to be a gun in Michael LaHood’s possession and heard what sounded to him like the click of an automatic weapon.

In May 1997, Foster and Brown were tried jointly for capital murder committed in the course of a robbery. The jury found each guilty of that charge and answered the special issues at the penalty phase to impose a death sentence for each.

My Take: The death penalty seems commonplace in Texas with almost 400 condemned inmates awaiting their turn in the death chamber (read about them here), and Governor Perry has expressed his belief that executions are wholeheartedly supported by Texans (read some of his views here). But Texas prosecutors should only seek the death penalty in the worst of the worst cases (in Governor Perry’s words, "the most horrible crimes committed against our citizens"). Foster’s case was not one of these. Foster did not pull the trigger during a robbery that ended a life, as journalists and newspapers have widely reported; rather, he was the getaway driver. (Read some of the news stories here, here, here, and here). Many of these same reports indicate that Foster received the death penalty under the "law of parties," which many columnists and their readers view as unfair and a practice that should be ended.

The notion that a defendant can be sentenced to death under the "law of parties," however, is incorrect. As alluded to in the Fifth Circuit’s opinion quoted above, in a Texas death penalty trial there are two stages: "the guilt or innocence phase," where the jury determines whether the accused is guilty of capital murder, i.e., killing someone while in the course of committing another felony (like robbery), and "the punishment phase," where the jury determines whether the defendant (who it has already determined to have committed the capital murder) should be sentenced to life in prison or to death.

In the first phase, the guilt or innocence phase, a defendant may be found guilty under the law of parties. Texas law is clear that in a capital murder prosecution or any other criminal prosecution for that matter, "A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." (Read Penal Code Section 7.01 here). As pertinent in Foster’s case, "[a] person is criminally responsible for an offense committed by the conduct of another if . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." (Read Penal Code Section 7.02 here). In Foster’s case, the jury believed beyond a reasonable doubt that Foster aided in committing the robbery that resulted in murder. He was the driver of the vehicle used to commit a string of robberies using a gun that culminated in the final robbery where the victim was shot and killed. It does not appear that anyone questions that Foster was complicit in the crime, and it appears that the jury was correct in finding him guilty of capital murder as a party, i.e., promoting and assisting in a robbery where the victim was murdered. But being found guilty of capital murder does not automatically result in a death sentence.

A death sentence may only be given after the second phase of the trial, the punishment phase. In this phase, the jury is asked to answer several special issues. (Read Texas Criminal Procedure Article 37.071, Section 2 (b) here). One of these special issues (37.071, Section 2 (b) (2)), commonly referred to as the "ant-parties special issue," states, "[I]n cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code [the "law of parties" referenced above], whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken." So, knowing that Foster did not pull the trigger, the jury had to find beyond a reasonable doubt that even if Foster did not intend for the robbery victim to be killed, Foster "anticipated that a human life would be taken" in promoting and assisting in the series of armed robberies that eventually resulted in a murder.

Under the facts of Foster’s case and the capital punishment law, it is not unreasonable that the jury found beyond a reasonable doubt that Foster anticipated that by robbing people at gunpoint, a victim would likely be killed. But just because the jury’s determination is legally sound, it does not mean that such a decision is morally correct. And the jury still had an opportunity to spare Foster the death penalty under these circumstance. Indeed, the jury was required by law (Section 2 (d) (1)), that in "deliberating on the [anti-parties special issue], it shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant’s background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty." (The emphasis has been supplied). So, even though it knew that Foster did not pull the trigger and probably did not intend the death of the robbery victim, the jury did not find these "circumstances of the offense" to be persuasive enough to spare Foster the death penalty; the jury believed the fact that Foster must have "anticipated that a human life would be taken" in promoting and assisting in the crimes was enough to impose the ultimate punishment.

Bottom Line: While Foster is certainly no angel, his crime does not rise to the level of the worst of the worst of crimes deserving of death as a penalty. The jury in his case, apparently, disagreed. But public outcry, media attention, and an unlikely decision by the Texas executive branch returned some semblance of morality to Texas’s tarnished criminal justice system. If the people of Texas want to prevent the imposition of the ultimate punishment in cases where it is clearly not deserving, they need to understand the mechanisms of capital punishment.

A public outcry to do away with the "law of parties" will never be successful. First, it was not the problem in Foster’s case because it is not applicable to the question of life or death. Second, the law of parties is necessary in prosecuting many other crimes that have been traditionally categorized as accomplice-type crimes (a term no longer used in Texas criminal law), like a burglary actually committed by one person and planned by another but both people are guilty of the underlying crime.

The public outcry needs to be directed at the language of the anti-parties special issue that allows the imposition of the death penalty, in cases like Foster’s, where the evidence shows that the defendant only "anticipated that a human life would be taken" and no more. This phrase is what led to Foster receiving the death penalty, not the "law of parties." And doing away with the phrase will move Texas justice one step closer to being fair, albeit a tiny step.

Brokeback Mountain - Revisited

Here is an article covering the guilty plea of Republican Senator Larry E. Craig of Idaho (see picture of him with Ronald Reagan here and read Capital Hill Roll Call article here). He pleaded guilty earlier this month to misdemeanor disorderly conduct charges stemming from his June 2007 arrest by an undercover police officer in a men’s restroom at the Minneapolis-St. Paul International Airport. You can read the text of the Minnesota Disorderly Conduct statute, 609.72, here. Craig paid more than $500 in fines and fees, and a 10-day jail sentence was stayed during one year of probation.

According to the officer’s report (read PDF), Sgt. Dave Karsnia was working as a plainclothes officer investigating civilian complaints regarding sexual activity in the men’s public restroom in which Craig was arrested. Apparently, airport police previously had made numerous arrests in the men’s restroom in connection with sexual activity.

The officer entered the bathroom at noon that day and about 13 minutes after taking a seat in a stall, he stated he could see "an older white male with grey hair standing outside my stall." The man, according to the report, lingered in front of the stall for two minutes. "I could see Craig look through the crack in the door from his position. Craig would look down at his hands, ‘fidget’ with his fingers, and then look through the crack into my stall again. Craig would repeat this cycle for about two minutes." Craig then entered the stall next to the officer and placed his roller bag against the front of the stall door. "My experience has shown that individuals engaging in lewd conduct use their bags to block the view from the front of their stall, [and] from my seated position, I could observe the shoes and ankles of Craig seated to the left of me."

"At 1216 hours, Craig tapped his right foot. I recognized this as a signal used by persons wishing to engage in lewd conduct. Craig tapped his toes several times and moved his foot closer to my foot. I moved my foot up and down slowly. While this was occurring, the male in the stall to my right was still present. I could hear several unknown persons in the restroom that appeared to use the restroom for its intended use. The presence of others did not seem to deter Craig as he moved his right foot so that it touched the side of my left foot which was within my stall area." Craig then proceeded to swipe his hand under the stall divider several times, and the officer noted in his report, "I could ... see Craig had a gold ring on his ring finger as his hand was on my side of the stall divider."

The officer then held his police identification down by the floor so that Craig could see it. "With my left hand near the floor, I pointed towards the exit. Craig responded, ‘No!’ I again pointed towards the exit. Craig exited the stall with his roller bags without flushing the toilet. ... Craig said he would not go. I told Craig that he was under arrest, he had to go, and that I didn’t want to make a scene. Craig then left the restroom."

In a recorded interview after his arrest (hear some here), the report states, Craig "either disagreed with me or ‘didn’t recall’ the events as they happened." Craig stated that "he has a wide stance when going to the bathroom and that his foot may have touched mine." Craig also told the arresting officer that he reached down with his right hand to pick up a piece of paper that was on the floor. "It should be noted that there was not a piece of paper on the bathroom floor, nor did Craig pick up a piece of paper," the arresting officer said in the report. Also, while being questioned, Craig gave police a business card showing that he is a US senator and stated, "What do you think about that?"

After his guilty plea, Craig issued a statement confirming his arrest and plea. But even though he judicially confessed to the crime when pleading guilty, Craig maintained that he had not engaged in any "inappropriate conduct" and that the airport police misunderstood his behavior. As he said, "At the time of this incident, I complained to the police that they were misconstruing my actions. I was not involved in any inappropriate conduct. I should have had the advice of counsel in resolving this matter. In hindsight, I should not have pled guilty. I was trying to handle this matter myself quickly and expeditiously."

My Take: It does not appear that Mr. Craig is a lawyer but he did obtain an undergraduate degree from the University of Idaho where he served as Student Body President and was a member of the Delta Chi fraternity, and he also pursued graduate studies before returning to his family ranching business in 1971. As a lawmaker, he cannot be completely ignorant of the law itself, and the court would have had to determine that Craig’s plea was knowing and voluntary when he entered it.

His comments now are nothing more than self-serving statements to avoid the question of why he was acting as he did in the restroom. It appears from the facts that he engaged in the "lewd behavior" because he is a closeted homosexual. But he is also a conservative Republican from Idaho, and apparently such a revelation would ruin his career and undoubtedly wreck his marriage. Maybe playing dumb and claiming that he did not have the advice of counsel, even though that right was not denied him, is the best way Mr. Craig believed he could mitigate the damage he felt he had done.

It is a shame, however, that Mr. Craig was forced by the politics of his party and of many in this nation to have to resort to covert bathroom rendevous and self-denial. He should not be forced by hate and bigotry to feel ashamed about his own identity. Our nation must stop equating same-sex orientation with a lack of personal integrity because such a notion is wrong. Anyone who openly professes his or her sexual preference for the same gender in the face of condemnation from family, friends, and society has an immense store of courage and integrity that speaks for itself.

And recognizing this fact, Massachusetts took the bold step of ending the unequal treatment of its citizens by embracing gay marriage (see news article here). As the Massachusetts Supreme Judicial Court wrote, "Simple principles of decency dictate that we extend to the plaintiffs [gays denied the right to marry], and to their new status, full acceptance, tolerance, and respect. We should do so because it is the right thing to do." You can read the full opinion here. Unfortunately, many other states — like Texas — took affirmative steps to continue to discriminate against its own citizens (see Texas constitutional amendment here defining marriage as only the union of one man and one woman and marriage license statute here (Section 2.001) stating that a license may not be issued for the marriage of persons of the same sex).

Bottom Line: We shouldn’t have scandals like Mr. Craig’s because such scandals are of our own making. The real scandal is that in our "land of the free and home of the brave," citizens like Mr. Craig are forced into an unhappy life of hiding, deceit, and self-denial. In his attempt to keep his true sexual identity secret and to maintain his straight façade, Mr. Craig gravitated toward secret and anonymous sex in a bathroom, committing a misdemeanor. (Also, here is a good blog on the "old" gay culture of anonymous sexual encounters vs. the "new" gay culture of monogamy a/k/a self-loathing vs. self-affirmation). But he is no real criminal. It is the inequity of our nation’s laws regarding the rights of gays that is criminal. Why should being gay be viewed any differently than being straight or being single or being married or being divorced or being widowed or being black or being white? Why should one label be the basis for finding one person any better or worse than another? It shouldn't.

But unfortunately, Mr. Craig equates homosexuality with criminality and perversion and will continue in his self-denial (see a news report of some of the denials here) as well as in his opposition to welcoming all of our citizens into our national culture as equals. In short, behavior like Mr. Craig's is the product of a homophobic society. As a good friend recently said to me, "Sometimes I wonder if fundamentalists are so unforgiving of human nature because they have a better sense of its brutality." After looking at Mr. Craig's dilemma, I think my friend is correct.

Update on Citation-Rather-Than-Arrest-Law

Here is an article reporting that, unlike Harris, Fort Bend, and Bexar county officials (see discussion of these counties directly below or click here), the Travis County Sheriff is going to embrace the new citation-rather-than-arrest-law to help avoid needless jail overcrowding with non-violent offenders (at least those caught possessing less than 4 ounces of marijuana). As the Travis County Sheriff’s Department spokesman stated, "It will save us both time and money. It will give the deputy out on the street a chance to actually stay out on the street." According to the Travis County Sheriff, booking people caught with four ounces or less of marijuana cost Travis County taxpayers more than $1 million in 2006. Colorado County (which includes Columbus) is also embracing the new law (see Grits for Breakfast blog here discussing the Columbus D.A.’s approach). Their, the police chiefs informed the District Attorney that they are planning to take the accused to the police station, fingerprint and photograph him, and then release him with a citation that includes a future court date written on it. If the accused does not show up, a warrant will be issued for his arrest. If the accused appears, paperwork will be completed in court as is done in other summons situations (click here to see DA forum on the topic). Is that so tough?

As reported in the KVUE article (link here), Rob Kampia, executive director of the Marijuana Policy Project, stated, "It would actually make the most sense not to cite anyone for marijuana and not put them in jail or fine them at all—it should be legal. However, this is a step in the right direction."

My Take: Another step in the right direction would be to start referring to the "legalization" of marijuana as the "decriminalization" of marijuana. Such nomenclature would likely be more acceptable to legalization opponents because it would still refer to possession of the plant in terms of criminality, albeit benignly. The law-and-order types can be appeased and the state legislators can continue to say that they are anti-drug because they do not support the legalization of any drug. (On a side note, here is an article about the medical benefits of marijuana).

(Non) Arresting development.

Here is an article regarding the problem of jail overcrowding in Texas and the state legislature’s official sanctioning of the practice of issuing a ticket for certain class A and B misdemeanors rather than arresting the offender. Read the text of the new law here (underlined sections c and d). The ticketable offenses include possession of less than 4 ounces of marijuana, criminal mischief and graffiti causing damage of less than $500, theft of less than $500, and some driving while license invalid offenses. By the way, issuing a ticket rather than making an arrest is not a new and novel concept. Many police agencies in Texas have used the practice of issuing a citation to be followed by a summons prepared by the district or county attorney’s office for offenses like these even before the new law was passed. Then, if the offender failed to appear, an arrest warrant would be issued, much like with a class C traffic violation with a failure to appear charge tacked on.

My Take: Conscientious police officers often believe that their presence in the community to protect and serve is more important than taking a nonviolent offender to jail to be booked and have a bail set, a process that can take many hours and sometimes results in the nonviolent offender sitting in jail - at taxpayer expense - until a court date days or weeks later because he or she cannot afford the bail.

It is surprising that Chuck Rosenthal, who has a duty to represent the State in prosecuting those who violate the law (see duties of the district attorney here and here), has decided to ignore the dictates of the legislature and to abandon the citizens of Harris County because, as he says, "[H]is office won’t prosecute anyone who’s been ticketed for a Class B misdemeanor." The citizens of Harris County deserve to have their elected district attorney faithfully perform his job. And Rosenthall should not be in the business of thumbing his nose at the legislature. It is the duty of the legislature to make the laws, not Rosenthall. He should take a few moments to review the Texas Constitution (link here) and the statutes that define his role in the criminal justice system (links here, here, and here). In short, "It shall be the primary duty of all prosecuting attorneys . . . not to convict, but to see that justice is done." Rosenthal’s position does not seem to be seeking justice but seems to be an attempt to punish the nonviolent accused by arrest and incarceration before any trial. It also seems that Fort Bend County Sheriff Milton Wright (pictured here with his accordion) echos Rosenthal’s position, saying, "I think a crook’s ass ought to be in jail."

It is upsetting that Bexar County first assistant District Attorney Cliff Herberg is sounding an apocryphal alarm to incite mass hysteria by saying, "What if defendants went home after being ticketed and went on a killing spree? Officials would be left saying, ‘Well gee whiz, we didn't think you were important enough.’" Hopefully, Herberg avoids resorting to such tactics, e.g., appealing to probability, emotion and fear, making bare assertions, creating false dilemmas, and making straw man arguments, in an attempt to fool jurors at trial and undermine justice. After all, like Rosenthall, his primary duty as a prosecutor is to not seek convictions but see that justice is done.

But it is nice to see that Smith County District Court Judge Cynthia Stevens Kent is embracing the wishes of the legislature and apparently the citizens of Smith County who rejected a proposed plan to expand the county jail. She has been promoting the county’s Alternative Incarceration Program available to nonviolent offenders (explained here and here).

My question to Rosenthal is why don’t you do your job?

My question to Herberg is why are you really opposed to the practice? And if you want to use arrest rather than citation, then you need to start arresting people caught speeding because "Gee whiz, what if the speeder was speeding home to kill his whole family and his neighbors and was going to worship Satan afterwards?"

Bottom Line: It would be nice if more Texas counties followed the example of Judge Kent in realistically viewing how to achieve justice. It is a waste of resources and money to arrest and jail low-level offenders when such offenders can be brought to justice through court summons and jailing alternatives that are aimed at rehabilitation and not retribution.

Tell my science teacher: Plant material is not biological.

On April 23, 2004, state prosecutors obtained a conviction against Robbie Lynn Newby for possessing, in Wood County, Texas, more than four ounces but less than five pounds of marijuana. (Read docket sheet here). He was sentenced to imprisonment for ten years for the felony (Section 481.121(b)(3)) (look him up here with his TDCJ #01238216). Newby appealed a portion of his conviction regarding his use of a deadly weapon (Article 42.12, Section 3g (a)(2)) during the offense, which would affect his eligibility for parole (Section 508.145 (d)). But Newby failed to persuade the intermediate appellate court of the merits of his argument, and his conviction was upheld. (Read the court's opinion here). The case was further appealed to the state’s highest criminal court, where, to date, it remains pending. (Read docket sheet here).

The intermediate appellate court succinctly summarized the underlying facts of the case as follows:

On August 12, 2002, Wood County sheriff deputies executed a search warrant at Newby’s home in Wood County. According to a police check with the local electric utility company, Newby had lived at that residence since March 2000. When they executed the warrant, officers discovered several flower beds around the house in which seventy-eight marihuana plants were growing. Officers also found dried marihuana in an outbuilding on Newby’s property. Inside the home, officers discovered more dried marihuana in the living room and seized an SKS assault rifle located in Newby’s bedroom. Newby was subsequently arrested and charged with possession of marihuana.

After conviction, on April 9, 2007, Newby filed a motion for forensic DNA testing. He asked the trial court to order testing of the plants seized by police at his home because he claimed current DNA testing would show that the plants are "Texas State Hybiscus" (presumably Texas Star Hibiscus) rather than marijuana. According to Newby, the chemist who testified at the trial stated that he had conducted a single test on a sample of the biological evidence in determining the evidence was marijuana. The DNA motion was denied, and Newby appealed the decision.

In denying Newby relief from the trail court’s decision, the intermediate appellate court stated in its opinion the requirements that must be met before a DNA test is ordered. Among the requirements is that the motion may only request forensic DNA testing of biological material and that identity must have been at issue in the original trial (full requirements are here and here). As part of its basis for denying Newby relief, the intermediate appellate court held, without extensive analysis, that the legislative history of the DNA statute indicated that the Texas Legislature intended post-conviction DNA testing to be limited to determining the identity of a person, not a plant, and that Newby failed to demonstrate that identity was at issue at his trial in any event. Newby appealed the intermediate court’s decision regarding the denial of his DNA motion to the state’s highest criminal court, which remains pending.

My Take: Texas courts have long held that the plain language of a statute controls. Indeed, Texas’s highest criminal court recently stated in an opinion (the Tom DeLay case) as follows:

[W]hen interpreting a statute to give effect to the "collective legislative intent or purpose," we concentrate "on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment." We will give effect to the plain meaning if, "when read using the established canons of construction relating to such text," the meaning of the text "should have been plain to the legislators who voted on it[.]" We will not apply the plain language, however, if (1) the "application of a statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended," or (2) the language is ambiguous. In those instances, we will consult extratextual sources to reach a rational interpretation.

Applying Newby’s motion for DNA testing under the "plain language" analysis reveals flaws in the intermediate appellate court’s decision.

First, the DNA statute refers to DNA testing of "evidence containing biological material." This phrase does not appear to be ambiguous in the least where the term "biological material" is sufficiently narrow and precise. It would seem that "biological material" would apply to the species Cannabis sativa (aka marijuana) within the Kindom Plantae as well as the species Homo sapiens (aka modern humans) within the Kindom Animalia. Under the intermediate appellate court’s logic, "biological material" can only consist of human biological material, but this limitation is not what the Texas legislature wrote.

Second, the DNA statute also requires that "identity was or is an issue in the case." "Identity" of a plant as marijuana or another plant is always at issue where the State brings a charge of possession of marijuana; the state must have testimony that the "green, leafy" substance is in fact marijuana to obtain a conviction. Newby stated as much in his motion for DNA testing where he referred to the chemist’s testimony. And it is not absurd to request DNA testing of a plant for identification. Such a procedure is even explained here by the DEA.

As an example of the damage done by the intermediate court’s opinion: Say a defendant is charged with murder and is convicted. The defendant maintains that he is innocent. The only physical evidence linking the defendant to the murder scene is a faint trace of blood found on the victim’s clothing. But this blood is not human blood but animal blood, canine blood to be precise. The State introduced evidence at trial that the DNA of the canine blood is that of a dog owned by the defendant, a Labrador Retriever. The DNA evidence was not challenged by the defendant’s lawyer. As an added point, the defendant believed that the victim had shot his dog the afternoon of the murder, giving the State a reason for the murder to argue to the jury. Sometime after the defendant is convicted and sent to prison for life, a neighbor of the victim emerges who says the blood on the victim was likely from her dog, a Golden Retriever, and not the defendant’s dog, a Labrador Retriever. The neighbor says that her dog was attacked by the victim’s dog, a Pit Bull, drawing blood, and when the victim stood by to watch the dogs fight, the neighbor's Golden Retriever’s blood likely got onto the victim. This dogfight happened a few hours before the victim was alleged to have shot the defendant’s dog. The neighbor says she would have come forward earlier but had left the country on an important business trip just after her dog was attacked; she left her dog in the care of a veternarian while she was away.

Consequently, the defendant wants additional DNA testing, which by the time the new evidence comes to light, is more advanced than that previously available. Under the intermediate appellate court’s logic, because the blood is not from a human, the legislature did not intent that it be the subject of a post-conviction motion for DNA testing. And an innocent person may remain incarcerated for life.

Bottom Line: Regardless of the underlying merits of Newby's DNA motion, which appears spurious, hopefully the error of the intermediate court’s opinion will be corrected. Otherwise, the potential power of DNA testing to exonerate the wrongfully convicted innocent defendant may be eroded in instances where the "biological material" sought to be tested is other than human biological material.

Update: The Texas Court of Criminal Appeals refused Newby's appeal regarding the deadly weapon finding on August 22, 2007, as indicated here. Newby's appeal of his DNA motion is still pending (click here to check status).

Do you have an unsecured WIFI connection?

Good article from Austin Chronicle with interesting Fourth Amendment issues regarding internet browsing and probable cause. Snippet: "The government assumption should make anyone who uses the Internet nervous -- especially those who might use an unsecured connection, those who provide wireless Internet access for customers (for example, bookstores, coffeehouses, restaurants, or even the city of Austin’s Parks and Recreation Department), and small-business owners whose employees use computers connected via a router to an Internet modem."

In this case, law enforcement officials were able to trace a pornographic instant message to an IP address registered to the defendant at a specific street address. The defendant argued that because he used an unsecured wireless connection, the transmission could have been made by a number of third parties. As it turns out, the defendant probably did not send the instant message; it was probably sent by his house-mate. But police did find child pornography stored on computer disks in the defendant's possession. The Fifth Circuit held that the government's search warrant was not invalid merely because the pornography justifying the warrant was sent over an open and unsecured wireless internet connection. The court went on to say that the unsecured nature of the wireless connection does not affect the underlying basis for probable cause because probable cause only requires a "substantial basis" for believing that a search warrant will be useful. The court further stated that although it was possible that the transmissions originated outside the residence, the likelihood that the pornography in question emanated from the IP address owner himself was strong enough to justify probable cause.

My Take: While the police investigation was less than stellar, the warrant was supported by probable cause and the search did not violate the Fourth Amendment. Of course, it would have been nice for the police to gain a second search warrant for the roommate’s property based on new information learned – there was ample probable cause for such a warrant because the evidence pointed to him as being the true target of the initial investigation. Unfortunately, because the police (AG and FBI cyber crimes) did not do this, the investigation and arrest has the appearance that law enforcement may have been seeking headlines like these and this with minimal work and may not have been necessarily seeking justice. The Austin Chronicle article states that the case is "now headed for the U.S. Supreme Court," but the Fifth Circuit Pacer and the Supreme Court docket have no reference to any cert filing to date. It appears that the person who committed the crime, i.e., the person who transmitted the pornographic instant message, that initially began the criminal investigation remains at large.

Side Note: Given the fact that some unscrupulous police officers may consider using illegal means to manufacture probable cause and may even use "trickery and force" by staging an accident, theft, and chase to achieve a clandestine seizure, some law enforcement may view unsecured network's such as the one in this case as an excellent invitation to obtain a search warrant with the secret goal of finding other types of contraband, i.e., weapons and drugs.

Bottom Line: Be careful if you plan to host an unsecured wireless internet connection or allow others to use your internet connection. If you aren't, you may end up hosting a party for law enforcement with a valid search warrant even if you never did anything wrong.