What is the "Attorney-Client Privilege" and are jails exempt?

I've often wondered whether conversations that I have with clients are being recorded... even if there are not signs warning against it. While I want to believe that they are NOT, as I think that would be a clear breach of confidentiality between clients & attorney's, it would not surprise me. One of my favorite bloggers, Grits for Breakfast wrote on this topic in this article. And, Grits even quotes a nearby personality for central Texas, District Attorney for Williamson County, John Bradley, who said,

... jailed inmates have no expectation of privacy.

I agree with that statement for its general tenet, but definitely not in the perspective of when an attorney is talking with his or her client. Now, one could argue that if an attorney knows there is a chance a conversation is being recorded that he or she should control the conversation to compensate for that, but under some circumstances the information is needed and should be available based on the centuries old principle of attorney-client communication as discussed at length by the National Association of Criminal Defense Lawyers, here.

What I have done to avoid the risk is to speak with client's in person and in the rare instance where I am on the telephone with them, the first thing I say after identifying myself is that I want them to be very cautious in what is said just in case someone is listening in.

Maybe what we all should do as a defense bar is to begin with open records requests to the jails of our respective counties to obtain their official "policies" on such matters... things like their "General Orders" may be available. The unfortunate side to all of this is that we can almost rest assured that the written policies will not contain language that this occurs....

Thanks to Robert Guest another Texas attorney blogger for bringing this to our attention.

Good Job, Williamson County (for filing false report charges against a 'victim')

Seeing this story was very exciting to me, as it seems that for too long law enforcement has taken complaints from victims and pursued them, which often results in charges being filed against an individual. Most of the time, I find that I am representing the person charged as his or her criminal defense attorney, but today, in what is generally considered to be an unpopular action, law enforcement in Williamson County filed charges against someone for falsely reporting an offense.

The reported story may be read on the KEYE website here or on one of several other Austin-area news stations. But, to summarize the story,

a woman who was experiencing car problems pulled over on Highway 29 west of Ronald Reagan Blvd. Police then say a suspect pulled behind the woman offering her help around 8:30p.m. The individual sexually assaulted her at the location.

The complaining victim was arrested for false report on this past Friday. Detective John Foster of the Williamson County Sheriff's Office would not provide details about the matter, and this story is available for further review, here.

The reason that I congratulate Williamson County for this action is that too often people call the police and then back out of the charge later. Meaning, they complain about someone's action, get the person arrested, and then change their mind. Most often, this is in domestic violence / assault with bodily injury cases involving family violence. Too often, there are unwritten policies in place not to pursue charges against these complaining witnesses because law enforcement or prosecutors do not want to prevent people for calling for help out of fear of prosecution if they later change their story.

But, I must say, if you are not going to stand behind your testimony, do not cause someone the stress and anxiety of being arrested, jailed, and prosecuted, not to mention the thousands of dollars wasted in defending that matter. Hence, one more time, Good Job, Wilco!

Solving the Drug Problem starts by Decriminalizing Pot and Reducing State Jail Felony Cases to Misdemeanors...

Many of Grits for Breakfasts blog postings receive numerous hits and initiate heated debate, but Williamson DA Sees Drug Penalty Debate as Turf War really grabbed my attention because it involves Williamson County, which is one of the places I practice criminal defense.

John Bradley, District Attorney for Williamson County, was quoted as saying:

If SJF drug cases become misdemeanors, the shift in workload from district to county courts at law would be substantial. In selfish terms, a DA with only felony jurisdiction (like myself) would suddenly have an enormous percentage of the caseload moved off the docket. A county attorney with only misdemeanor jurisdiction (such as my colleague in Williamson County) would suddenly find herself with lots of new cases.

This would be an extraordinary movement of resources for no reason other than someone deciding to reclassify the crime from felony to misdemeanor. Punishment would require county dollars (in county jail) rather than state dollars (in state jail)....

The discussion became more heated in the comments that followed Grits blog entry. Although several of them made very valid points, the one in particular really made a point with me:

kaptinemo said...

How many times must the system be 'tweaked' before the recognition is made that it is the system, itself, that is the problem?

The 'system', in this case, is drug prohibition, which is the font of the complained-about caseload. Prior to 1914 and the Harrison Narcotics Act, which Federalized drug 'crimes' such as possession, we didn't have these problems...or caseloads.

Why bother playing around with trying to unravel the Gordian Knot of drug prohibition and all its' baggage? We've been trying to do that, to the tune of a trillion dollars since 1968, and we're no closer to achieving a drug-free utopia now than they were back then...as the complained about caseload demonstrates. A caseload we can no longer fiscally afford. It's long past time to consider the once unthinkable, and to speak the once forbidden, and talk about alternatives to the present - and punitive - DrugWar.

Now, in these difficult economic times, it may really be time to try something new, and different. I will be the first to admit that the legalization or the decriminalization of all drugs or even most drugs may not be in society's best interest, I am willing to consider alternatives. I absolutely agree that these SJF crimes should be reduced to misdemeanor offenses, as too often people are being convicted of felonies for miniscule amounts of an illegal substance. Even when these people are given deferred ajudication probations, often the conditions are so stringent that a saint would have a difficult time completing them.

So, as kaptinemo wrote about fighting the drug war and spending trillions of dollars, which I agree is a worthless fight and an unwinnable one at that, I propose the following:

• legalize the possession of less than 2 ounces of marijuana;
• criminalize its use when driving (similar to DWI, afterall, is pot really any worse than alcohol);
• allow the government to regulate the sale of marijuana and tax it (similar to tobacco); and
• reduce the levels from SJF to misdemeanor offenses on other drug crimes.

This process would guarantee that the marijuana is not laced with something more addictive or harmful and would allow the government to create revenue to help pay off its trillions of dollars in expenses. Not to mention, not fighting the "war on pot" would save counties, states, and the government in general large sums of money (purposely I am being vague as I do not have a figure to write).

Further, it would save money on prosecutions and those convicted of the SJF amounts of other substances. And, as to John Bradley's comment about shifting the burden of work to another office, I believe this would only allow a couple of things to happen:

• assistant district attorney's would have more time to review and handle the other, "more serious" cases; and / or
• given that these ADAs are also county employees, nothing would prevent them, aside from politics, from working on some of these lower level cases, unless the agencies in question absolutely refuse to work together or share responsibilities; afterall, both are paid by county tax dollars and both work for "The County".

To conclude, pushing more people into the criminal justice system, whether it is by placing them on probation or putting them in jail or prison is not the answer. We already have the highest percentage of our population involved in this system, at least among the developed world.

Lazy? Oversight? Moronic? Red Tape? (a few words that crossed my mind while driving to the Williamson County Jail)

So tonight, I found myself having to work through more of the bureaucratic red-tape that is caused by either the lack of communication, poor training, disorganization, laziness or simply the complete ineptitude by some but not all of the people working in the Williamson County Sheriff's Office.

The background:

At approximately 3:45 to 4:30 p.m. on Friday, February 13, 2009, I spoke with a client and signed a waiver of magistration to speed up the time of her release from custody in the Williamson County Jail. She was arrested earlier this date on a warrant with a bond already set by a different judge. I completed the form that the jail staff provided me and submitted it to one of the jail staff supervisors. The Waiver was accepted. The time was now approximately 4:30-4:45 p.m. I left the jail and spoke with the client's relative who had hired me on her behalf. In addition, the surety bond itself was posted almost simultaneously to this by a local bonding company. The client should be released anytime now that these documents were in place.

The result:

At 10:25 p.m. (approximately 6 hours later) I receive a call from the bonding company saying there is a problem with the client's release because "they" (Williamson County Jail) did not have a copy of my bar card with the Waiver. I called the jail and spoke with the Sgt. working at that time and was told that they must have the bar card with it. I explained that it had been filed by a Lt. on a previous release, but this Sgt. said that was not sufficient, that it must be with this Waiver. I asked the Sgt. if she could copy it from a prior file that I turned in on a different client on February 12. I was told no because that does not verify my identity. I then asked if it could be pulled from the State Bar of Texas website, where the State of Texas maintains my record as an attorney. Again, I was told "no". Then, I was told that if I wanted to wait and discuss the matter with the Lt. or another supervisor, I was free to do that but that the client would not be released without a copy of my bar card. Of course, I got out of bed and made a special trip back to Georgetown to fulfill this "request".

My opinion:

Granted, we all have opinions and thus they are not necessarily worth anything. However, I was completely appalled by this entire process for a number of reasons:

1. This information (bar card information) is on file with the Sheriff's Department in a rolodex at the front desk (taken by the Lt. I referenced);
2. This information is available on the Internet, which I provided the link to above and offered to the Sgt. (and given the countless hours that County employees spend surfing the internet when they should be working, this "required information" could have been pulled and put with the Waiver, if it is so important);
3. Most importantly, the Waiver was accepted when I turned it in ... no one told me that they needed my bar card again (previously filed and even checked when I entered the jail on this date, so they knew I was an attorney);
4. Probably of less importance, but I worked at the Williamson County Sheriff's Office from October, 2005 until June, 2008 (granted I doubt everyone knows that or cares, but I know that I am in the County computer system);
5. This was probably just a passive aggressive act to hold the client in jail a few hours longer... afterall, why on earth did it take until 10:25 p.m. for me to even get a call about this "error"?

My plea to anyone with an interest in changing Williamson County:

1. Start paying attention to things that happen here;
2. VOTE (for anyone who runs against the elected members of this monopolized, disfunctional machine);
3. Take note of stories like this and remember them ... it is only a matter of time until something happens to every one of us (directly or indirectly);
4. Question why it took so long to process this release when the documents were submitted before 5:00 p.m.;
5. Respond to my blog ... let's really start a discussion here (I am still incensed by the lack of professionalism, communication, and integrity that pervades the very core of the Williamson County Criminal Justice System and so should every person who resides in that County... unless you are part of the problem rather than the solution).

I purposely omitted names of the parties and other entities involved, as there is no reason for me to name them individually, however, the ranks of the people I spoke with were accurate and gender was purposely excluded. As a criminal defense attorney who regularly defends people accused of crimes in Williamson County, Texas, I see a direct need for getting that system to change, as it is overrun with problems just like this on so many levels and with a very few exceptions, most people are not willing to speak against it to urge that Change come to this place.

Travis County Hospitals and Sheriff's Department have finally figured out that Forced Blood Draws are a bad idea. When will Chief Acevedo figure it ou

The Austin American Statesman reported in today's paper that Austin's Hospitals and the Travis County Sheriff's Department have informed the Austin Police Department (APD) that they will no longer collect blood for APD.

Travis County's central booking facility had been the place where APD took their suspected DWI folks for the forced blood draw. APD would rely on the Sheriff's nurses to do the forced blood draw. (If the person refused, they would literally strap them in a chair so that the person couldn't move their arms, and then stick them with the needle) The Sheriff's Department nurses stopped taking blood samples on January 1. The Sheriff's Department has finally realized that the nurses main function should be to treat inmates, not collect evidence. Further, they are deeply concerned about having to give nurse's overtime pay to appear in court after having been the one that draws the blood.

Since the Sheriff's Office stopped doing the blood draws, APD started taking suspects to the hospital for the blood draws. (I can't verifiy this, but I heard that the hospital was charging APD $400.00 per blood draw.) The Hospital representatives have now told APD they don't want them to bring suspects to jail for blood draws. The Hospital staff are worried about lawsuits, and are concerned because these types of blood draws are not being done for medical reasons. Further, the Hospitals are worried about who will pay for the nurse's time when they are called to court to testify about the procedure they used to draw the blood.

Chief Acevedo thinks he has figured out a way around these problems. APD contracted with a private phlebotomist to draw the blood of folks on Halloween weekend and New Years Eve. APD agreed to pay the phlebotomist for three eight hour shifts during these weekends. What APD didn't contract for was pay for this phlebotomist when she is drug into court to testify about the blood draws. I predict there will be a lot of screaming from the phlebotomist when she finally figures out that the money she received per hour will now be reduced by the number hours she has to sit in court.

In the Statesman article, an "expert in blood draws" states that "the state laws are clear that nurses and hospitals are protected from such suits. What the "expert" appears to be referencing is Section 724.017 of the Texas Transportation Code. The relevant section, section (b), states:

The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures.

However, this "expert" left out the final sentence to section (b):

This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.

Now, what the "expert" seems to be forgetting is that it will ultimately be up to a fact finder (Judge or Jury) to determine if negligence took place.

Also, I bet no one informed the phlebotomists that they could be held liable for the blood draws either.

APD is treading on thin ice on this issue, and the sad part is, they either don't even realize it, or they just don't care.

Austin Police Department set to roll out new Bat Bus

The City of Austin has decided to replace their current BAT Bus(Breath Alcohol Test Bus) with a new improved BAT Bus.

The city agreed to buy a breath alcohol testing bus so officers don’t have to make the trip to the county jail.

The new Bat Bus will have to stations for Intoxilyzer 5000s as well as workstations for the officers to review the videotapes of the incident and prepare the offense reports.

Futher, there will be City Marshalls on hand to transport folks who have been arrested to the jail facility. This will allow officers like the one they call “the Machine” to get back on the street faster. The Machine currently holds the record for making 7 arrests in one night.

“Typical, DWI arrest takes between three and four hours,” Austin police Cmdr. Patti Robertson said. “It narrows it down. Takes off 3/4 of that time. They have all the paperwork, turns it over to the officers on the bus.”

DWI has become big business in Austin.

“We are at 800 per 100,000 people for DWI arrests…” Robertson said. “What that means is we are ……the highest in the state for DWI arrests. I think that speaks volumes.” It certainly does.

There are approximately 10 different agencies in and around Austin that are all competing for grant money related to DWIs. The question then becomes, “Could this possibly motivate officer to make more and more arrests?” My belief……ABSOLUTELY!

Can the Atkins diet affect the Breath Test?

A Virgin Atlantic Pilot found out the hard way that the Adkins diet can affect the breath test when he was removed from a transatlantic flight after failing a breathalyser test. He has finally been cleard of this charge after it was discovered that his low-carbohydrate diet triggered a false reading.

Subsequent blood tests on the pilot showed a blood-alcohol reading of just over a fifth of the limit set for airline pilots - which in turn is a quarter of the drink-drive level.

The pilot’s nightmare began when he went through the security checks for flight crew one of the guards thought he could smell alcohol on his breath.

The pilot was allowed to board the plane but about 45 minutes before take-off police got on the aircraft and breathalysed the pilot in the cockpit using a machine calibrated to aviation levels. The pilot failed this test and was escorted off the plane.

A standby crew was called and the pilot was taken to the police station, where blood tests were taken.

He was suspended from duty and released on bail.

The pilot’s blood was sent it to a laboratory where they found only a minimal blood alcohol reading. After the lab tested two more samples, he was exonerated.

Even non-drinkers are capable of producing trace elements of alcohol in their bloodstream, which would explain the level in the pilot’s blood.

The breathalyser reading was attributed to the pilot’s low–carbohydrate diet, which can affect the smell of a person’s breath and their metabolism.

Breathalysers mainly detect ethanol (the type of alcohol found in drinks) But some machines are unable to distinguish ethanol from acetone, a chemical that is produced by people on low-carbohydrate diets such as the Atkins diet. In normal circumstances this is not a problem but with the alcohol limit in the aviation industry is set at about a quarter of the normal “intoxication” level (.02) even these traces can result in a positive reading.

Where this is most likely to cause problems is when a person has been drinking, but not to the level of being intoxicated (.08). You then add the fact that the person is on a low carbohydrate diet, which will produce acetone in their breath, and there is a strong likelihood you will end up with a unreliable result from the breath testing machine.

Drink, Drive, Go to Jail maybe the policy, but it isn't the law!

This past weekend, the Gregg County, Texas sheriff issued a press release that stated that if you drink and drive this independence day weekend - you will go to jail.

In December 2006, Gregg County commissioners approved a grant to participate in the statewide “Drink, Drive, Go To Jail” campaign. This grant provides resources necessary to conduct DWI enforcement throughout the holiday periods to increase the arrests of folks that drink and drive.

Captain Ken Hartley with the Gregg County Sheriff’s Department says; “We’d just like to remind people to drive responsibly. Don’t drink and drive. Enforcement will be out there and it’s not worth that chance and certainly not taking a chance of hurting yourself or others.”

What they are totally ignoring is the fact that is not against the law to drink and then drive as long as you are at least 21 years of age, and you are not intoxicated. I believe that the Sheriff is setting up a great argument for the fact that people are going to be arrested that don’t meet the above criteria.

The police and prosecutors always want to lower the standard, but it just isn’t the law. Another example of the attempt to lower this standard is the “Buzzed driving is Drunk Driving” billboards. Neither Buzzed driving, nor Drunk Driving is the standard…..Intoxication is.

I certainly hope a defense attorney in Gregg County is paying attention to this and is willing to use this to show the juries there that THIS Sheriff’s deputies have the potential for making wrongful arrests.

While we all know the Austin Police practice a “Drink, Drive, Go to Jail” policy, the administration has been smart enough not to voice it publicly.

Tougher Punishments Are Not The Answer To Deter DWIs

University of Florida researchers have deteremined that tougher punishments may not be effective in deterring people from driving drunk.

Increasing the minimum jail time keeps few drunken drivers off the road and doesn't significantly prevent fatal car crashes, according to the study, published in the journal Accident Analysis & Prevention.

The researchers examined the changes in DWI laws and policies between 1976 and 2002. They also studied the rates of DWI arrests and fatal alcohol-related car crashes.

Alexander C. Wagenaar cq , lead author of the study and epidemiology professor in the UF College of Medicine, said researchers wanted to find out if stricter regulations deterred people from drinking and driving and if the number of accidents would drop in the population as a whole.

"We found out that's not the case," he said.

James C. Fell, director of traffic safety and enforcement programs for the Pacific Institute for Research and Evaluation in Maryland, said on average, statistics show that a person drives under the influence 50 to 200 times before he or she is caught or gets into a crash.

I have said over and over and over, we must move our resources into education, rather than punishment. Until the powers that be, the Legislature, figures this out, they will continue to increase punishments to no avail. I was once told that the two areas that Legislators love to go home and tout, is tax cuts and being tough on crime. Unfortunately, I guess that still holds true today.