JUDGE WATCH: Austin Judge Thinks His Power Includes Ordering Woman Not to Get Pregnant

Here in Texas, even a state district judge can be a man with a hat and no cattle ....

Last month, Travis County Judge Charlie Baird faced off against 20-year-old Felicia Salazar, who admitted to the court that she had failed to properly protect her 19-month-old daughter from the child's father - who had beat the baby, breaking bones and causing other injuries.

Felicia and the baby daddy both had their parental rights to the child terminated, and the little girl was placed in foster care. Meanwhile, the father was sentenced to 15 years in prison.

When it came time for Felicia Salazar to face the music, she stood before Judge Baird with no prior criminal history and an acknowledgement that she'd failed her daughter -- and with her defense attorney, she'd entered into a plea bargain with prosecutors, where she would get 10 years probation. It was time for the Judge to impose conditions upon that probation, and usually judges require things like community service and mental health treatment.

Judge Baird did impose standard conditions to Felicia's probation: she has to perform 100 hours of community service, and she's got to undergo a mental health assessment. But Judge Baird went one further: he ordered Felicia NOT TO HAVE CHILDREN FOR THE NEXT TEN YEARS.

Can a judge really order a woman not to have a child? Really???

Nope. Of course, the Judge thinks so. He's told the media that it's a reasonable condition of her probation. And, there are those who would argue that it's all too often that parents who have had parental rights terminated just repeat the abuse cycle when they bear new offspring. They'd see this as avoiding a tragedy, and applaud Judge Baird's efforts.

They'd be wrong. This just isn't constitutional, period. A trial court judge can't tell someone that they can't have children. It's exceeding his power. Blatantly.

1. A man elected to preside over criminal proceedings doesn't have the authority to tell a 20 year old woman that she can't have a baby at any time, much less until she's 30 years old.

2. Even assuming that somehow this action could be justified, this would still be overreaching in this situation -- the woman has no prior history with criminal authorities or Child Protective Services, and she herself was not the one who committed the violent acts. I believe we can all read between the lines here: she looks to be a woman who cowered before an abusive boyfriend, and was too weak to stop him. What about getting her classes in parenting? life management? individual counseling?

3. How enforcable is this? What if she does get pregnant - is the Judge going to order that she have an abortion, in addition to revoking her probation and sending her to jail? Ridiculous.

Dangerous precedent being set here -- and in Wisconsin.

As much as this sounds like some story out of the annals of Judge Roy Bean, it appears that Felicia may be stuck with Judge Baird's ruling. Her attorney hasn't filed an appeal. Heck, Felicia may be counting her blessings that she's not behind bars, and she's happy enough right now.

If so, Felicia's challenge may come up later -- when she gets pregnant, and some probation officer tries to throw her in jail for violating a condition of her probation. Then, her lawyer will get this arrogant, unconstitutional ruling overthrown -- hopefully.

Why hopefully? Because up in Wisconsin, there sits on the books a case where a father of 10 kids got caught for not paying child support. As a condition of his probation, he was ordered not to father any more children. The Wisconsin Supreme Court upheld that decision.

Criminal Defense is all about Protecting Our Rights

Every single criminal defense attorney in this country gets questioned on almost a daily basis with a version of the same query: 'how can you represent those bad, guilty people who did horrible things to good folk?'

And, every single criminal defense attorney in this country has to remind people on almost a daily basis that those accused clients, in each and every case, are testing the strength of our judicial system -- a system of rights that serves to provide justice and freedom for each and every one of us.

The System of Rights that Protects All of Us is Weaker Today Because of this Decision

Felicia Salazar admitted to not being a good mother. Judge Baird thinks he's doing the right thing by keeping her from becoming a mother again. But, to you and to me, a constitutional right has been disrespected and weakened here and we should all be very concerned about this.

Any time the rights of any single individual are denied, one brick in that system of freedoms we all hold dear falls away.


Source:

Austin American Statesman
http://www.statesman.com/news/content/news/stories/local/09/12/0912salazar.html

Crime News: Brain Scan as Truth Test Sends Woman to Life Imprisonment

Sit down for this one.

This is scary, scary stuff - even for Hallowe'en ... because what has been reported is true, not just some science fiction story or horror movie or boring lab report.

"Experiential knowledge of the crime" - an Automatic Guilt Machine

Technology now exists where some lab worker in a white coat can attach wires to your head, and then decide whether or not you have "experiential knowledge" of a crime -- as in, you really remember doing it -- and if you do, voila -- you're guilty!

That's right. Let's ponder this again: there's a gizmo that is supposed to conclusively know if you're guilty of a crime or not by monitoring your brain waves with wires.

How's this supposed to work?

Well, the guy in the white coat takes an electroencephalogram, or EEG -- in other words, he places electrodes on your head that will measure electrical waves.

You set there, silent, with your eyes shut tight. Wires on your head.

Then, white-coat guy starts reading aloud the details of the crime (and you can bet, this is a script written by the prosecutor). As he reads, and you just set there, the EEG machine is recording all your brain images.

Using this new gizmo software. the brain is said to purportedly "light up" in certain areas that store memories, lighting up when past experiences are recognized.

Oh, and sure, the gizmo software is supposed to be able to clearly, easily, and conclusively be able to determine whether or not your brain is "lighting up" because you witnessed, or saw, something happen, as opposed to whether or not you committed the act yourself.

Right.

I cannot even begin to describe the horrific affront this is to the most basic human rights, much less those constitutional rights like due process .... Heck, we know lie detectors are not accurate. We still have some problems with fingerprint analysis. And, this testing of air in the Casey Anthony case is getting lots of skeptical responses.

But, some machine can not only report that you have a memory of an event, but that you committed a crime, based upon whether or not your brain "lights up" -- this would be hilarously stupid to consider, if it weren't being taken so very seriously.

Surely this isn't being taken seriously, you ask? Wrong.

Over in India, a young woman was accused of poisoning her fiance by putting arsenic in his McDonald's meal. It's apparently understood by everyone that in India "police interrogation" is synonimous with "torture," so when the woman had the choice between the "interrogation" or undergoing this new Gizmo Guilt Test, she chose the brain scan. Who wouldn't?

She claimed she was innocent. She probably hoped science would be her friend in ways that law enforcement would not.

No such luck. The woman purportedly "failed" the brain scan, was found guilty of murder based upon the brain scan, and sentenced to life imprisonment - because of this scary, scary brain scan.

Just think what an overzealous Dallas County prosecutor could do with this thing.

Check out this YouTube video that shows the CNN report on Aditi Sharma's murder conviction and life sentence, ordered by a judge (no jury), based upon a brain scan.

For more information:

International Herald Tribune
http://www.iht.com/articles/2008/09/15/asia/15brainscan.php?page=1

Neuroscience
http://io9.com/5050009/indian-court-accepts-brain-scans-as-evidence-of-murder

Crime News: Now Informers Can Narc Anonymously by Text Message

For criminal defense attorneys in Texas, it's getting closer and closer to Orwell's 1984 every day ....

Have you heard about this one? A Nacogdoches, Texas, company called Anderson Software issued a press release that victoriously announced its introduction of a new product, Tips via Text TM, which will allow anyone, anywhere to send an anonymous tip to an agency, like CrimeStoppers, and have the cops text them back, all without revealing their identity.

Informers Can Text In Their Tips Anonymously Using The New Tips via Text program

CrimeStopper programs are chomping at the bit to get this software for their communities (it assigns an encrypted alias to the tipster's call, so their real identities are not revealed).

Anderson promotes Tips via Text as a way for informers to send in their tips when its "not feasible or safe" to telephone a tip line. CrimeStoppers is particularly excited about the product, predicting it will be "particularly useful for student programs."

Doesn't anyone think about the implications here?

How does this anonymous text messaging impact the rights of you, me, and our teen aged kids -- you know, like our right to privacy and all those civil rights that we are guaranteed under the Constitution??

Ponder this situation: teenager A is mad at teenager B because A's boyfriend has left the party with B, and it's not looking like they're coming back to the soiree. What does A do?

She sends a Tips via Text and with her guaranteed anonymity, reports that the boyfriend is driving drunk. There's a prompt reply and a quick text discussion on the type of car being driven, the road they've taken, a description of the driver.

Remember, there's no human to listen to her giggle as she reports this, or to judge how inebriated she might be....

The police quickly respond and pull over boyfriend on suspicion of drunk driving. Nevermind that the cops never saw anything that would lead them to believe he might be intoxicated -- they act solely on the text-tip and when boyfriend fails the field sobriety test, he's busted.

What Happens to Due Process and Privacy and All Those Other Rights?

In this country, we're supposed to have LIBERTY and JUSTICE ... which means that the government cannot detain us, much less arrest us, without good reason. Cops shouldn't be able to pull someone over for a suspected crime unless those cops actually have their own reason to believe a crime is occurring. Period.

Police power is supposed to be exercised within carefully defined, clear-cut boundaries. This Text Tip Under an Alias messes with that ... and police power can be misused.

Think this won't happen? Think again. It's already been okayed by the California Supreme Court (police acting on anonymous tips without their own verification of a possible crime). They even have signs along the road, encouraging fellow travelers to narc on each other about possible drunk driving.

Imagine the misuse this invites. Imagine. Think of your ex-wife. Think of the disgruntled employee. Think of the cop who's tempted to text himself.



Sources:

Anderson Software
http://www.andersoft.com/default.aspx

Darren Kavinoky's NoCuffs.com
http://www.caexpungementcentral.com/articles/anonymous_tips.htm

COP WATCH: New Online Website for Those Most Wanted of Criminals, the Unpaid Traffic Tickets (But Don't Trust the Site, It Warns)

Have you seen this yet?

Dallas County has actually spent the time and money to publish a website (click here to check it out) that lists (with photos!) the most notorious, heinous wanted men and women in the county who ... wait for it ... haven't paid their traffic tickets. Yes. Not kidding.

And, it gets better.

The site itself admits that the information shown may not be "current information for any legal purpose." The people may not really be wanted. The amounts shown may not be accurate. You get the idea.

And, finally -- the website itself warns that no action should be taken based upon anything shown on the site.

What You've Really Got Here

So, you've got U.S. citizens (remember those "innocent until proven guilty" folk?) with their photos posted online for anyone and their neighbor (including their mother-in-law) to see, under a bold headline in red type (RED) that says really great stuff like "MOST WANTED," along with lots of disclaimer language that says "well, maybe ... but don't trust anything you read here and above all, don't rely on it."

I could not make this stuff up.

Full Text of Vasilas Opinions - Oct 2008 Memorandum Opinion by Judge Sandoval and March 2006 Opinion of Texas Court of Criminal Appeals

For those interested in reading the details in the Vasilas case, including the memorandum opinion just released by Judge Sandoval this month (finding Jim Vasilas "not guilty"), here they are (click on each link):

October 6, 2008, Memorandum Opinion of Judge Charles Sandoval, Cause No. 380-82535-03 in the 380th Judicial District Court of Collin County, styled State of Texas v. James Vasilas; and

March 22, 2006 Opinion (unanimous) of the Texas Court of Criminal Appeals, Cause No. PD-0351-05 and styled State of Texas, Appellant, v. James Vasilas, Appellee on petition for discretionary review from the Fifth Court of Appeals of Collin County

In case you'd like to read the underlying section of the Texas Penal Code, check it out here:

Texas Penal Code 37.10(a)(5)
Texas Penal Code 37.01 (Definitions)

Note the text of the following Penal Code definitions:

(1) "Court record" means a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court of:
(A) this state;
(B) another state;
(C) the United States;
(D) a foreign country recognized by an act of congress or a treaty or other international convention to which the United States is a party;
(F) any other jurisdiction, territory, or protectorate entitled to full faith and credit in this state under the United States Constitution.

(2) "Governmental record" means:
(A) anything belonging to, received by, or kept by government for information, including a court record;
(B) anything required by law to be kept by others for information of government; ....

Good Lawyer Needed...and Free Legal Forms Won't Cut It!

For grins and giggles, I did a Google search for "free legal forms" this evening. I was amazed to see 6,610,000 results returned in 0.13 seconds. Yes, six and one-half million hits! Heck, with that type of mass availability of documents for every conceivable transaction, who needs a lawyer?

There are literally millions of links to millions of sites offering everything from Wind Leases to Partnership Agreements, to complex Mortgage Loan Agreements...and they're all "free" for the taking. As a lawyer who routinely drafts Leases, deeds, powers of attorney, purchase and sale contracts, by-laws and other legal documents, I was more than a little disconcerted. Am I being obsolesced by the Internet -- just like travel agents and newspapers? What will I do? Is it finally time to pursue my lifelong dream of working as a Texas Game Warden? Do I need to trade in the ties for sunscreen and ballcaps?

Alas, after just a few minutes of following those links, I breathed a sigh of relief -- and maybe even slight disappointment. Turns out that those prophetic lyrics from Jimmy Buffett's "A Pirate Looks at 40" ("My occupational hazard being my occupation's just not around") weren't quite appropriate for me. In fact, I was instantly assured that the Free, EZ, Lawyer-in-a-box, Do-it-yourself, file it yourself, skip-law-school-and-the-bar- exam, forms are hardly any competition at all. Guess my time as a guardian of Texas' wildlife and natural resources will have to wait....

The internet has been called the "information superhighway." Its appeal has largely been the vast amount of information made available on it. All just a click away (better than being a "heartbeat away" I suppose). These days, you can find anything and everything on-line, much of which is yours with a simple click on the "download" button. But what are you really getting when you obtain free legal forms for use in your business, investments, and affairs? Far too often the truth is that you are getting exactly what you're paying for on a free site!

Legal forms have far reaching implications. They are significant and important. Lawyers do not give them out for free because they are powerful, and like Spiderman taught us all ..."great power requires great responsibility." Pre-packaged, and particularly free legal forms will often hurt you in the long run. Many times, they will end up costing much more than what you save by not hiring a lawyer to draft your legal documents based upon a thorough understanding of the particulars of your circumstances.

Here are a few basic and very serious concerns about pre-packaged Legal Forms.

1. The pre-packaged legal forms are designed very generally so that they enjoy broad applicability to large group of persons (the public, generally). They are not crafted to apply to your situation and facts. I call this "shotgun blast" law because the people pushing the generic forms get lots of "bang" from the bucks they spent posting the form documents. However, your important legal matters need a skilled rifle sniper who has intimate familiarity with your circumstances. Casting a bait net rarely yields a prize fish, and mass-appeal legal documents may very well miss important nuances of your situation!

2. Not all states or jurisdictions apply the same laws. For example, certain lease, contract and interest provisions which are perfectly legal and quite common in Pennsylvania may be frowned upon or perhaps even illegal in Texas. With free legal forms, you have no way of verifying which State the forms were drafted in, or which State's laws they track. The vast majority of disputes and transactions affected by legal forms are governed by state law. What is legal in New York or Louisiana may be illegal in Texas, and could void a contract that you need need to be valid. Without a lawyer's input, you have no way of verifying the applicability or legality of the provisions of a pre-packaged legal form.

3. The source of the free legal documents is often unknown. Anybody can upload to the internet a "form" or document they have crafted. I wouldn't be any less comfortable having an anonymous person draft my legal documents than I would having my mechanic review my X-Rays. What are the qualifications of the people posting the free documents? How do they make their money? Are there really 6.6 million benevolent souls who are also knowledgable in the law and capable of posting free databases to Google? I think not....but neither of us will ever know.

In sum, free, downloadable legal forms are simply not trustworthy or reliable. They are generally not worth the paper they are printed on, or the pixels they consume on your computer monitor. The money you save by not paying a lawyer to draft and review your legal documents could be spent several times over if your flimsy legal document ends up causing you to get sued...or worse. I know you'd rather pay anything than legal fees. I understand that many people think lawyers charge too much. Please understand, we lawyers generally charge a rate for the value of our services. Our time is our stock in trade. At my law firm, we spend that time in an effort to give you confidence and peace of mind. Surely that's worth a few hundred dollars an hour? In the end, it may save the several thousand we will be forced to charge to defend an invalid legal document.

Trey Wilson is a real estate, construction, water and general litigation attorney in San Antonio, with a Texas-wide law practice. He routinely drafts real estate and other legal documents including deeds, partnership agreements, Leases, Purcase and Sale Contracts, Powers of Attorney, Mortgage Agreements, and Promissory Notes. Though he dreams of being a Texas Game Warden, he has determined that the internet has not obsolesced his line of work, and that he continues to provide a very valuable service to his clients (apologies to Mr. Jimmy Buffett). For that reason, he'll buy more ties, and hold-off on memorizing the Texas Parks & Wildlife Code...for now. Trey Wilson may be reached at 210/223-4100 or www.sa-law.com

District Judge Charles Sandoval's Memo Opinion in the Vasilas Case: Jim Vasilas Not Guilty, But the Story's Not Over

Along with almost every other attorney in the State of Texas, I've been following James Vasilas' case as its traveled the appellate highways (e.g., my May 1, 2006 post). Now, Judge Charles Sandoval has issued a memorandum opinion from his bench on the 380th Judicial District Court of Collin County that should be a welcomed relief not only to Brother Vasilas, but to some degree to lawyers everywhere.

For those of you who aren't well aquainted with this case, here's a brief wrap-up:

James Vasilas is a Dallas attorney who was criminally charged with violating Texas Penal Code section 37.10(a)(5), tampering with a governmental record, which is a third degree felony carrying the possibility of 2 years in jail.

All this came about after James Vasilas represented a man charged with, and acquited of, delivery of marijuana while being convicted of a lesser charge (possession). Attorney Vasilas filed a petition for expunction of his client's criminal record. The petition stated that the delivery charged had been dropped.

Based upon that statement, the District Attorney pursued James Vasilas on the felony charge. (For civil lawyers, dropped and acquited are two different arguments to be made for expunction and technically, the petition held factual error.)

An attorney was charged with a felony because a pleading he filed in civil court allegedly contained a factual error. Imagine the ramifications and the misuse this invites.

At the get-go, the judge quashed the indictment. The DA appealled and the games began.

In Vasilas v State, 187 SW3d 486 (Tex.Crim.App.2006), the court found a petition to be a "government record" under the Texas Penal Code. Whoa.

Then, the Dallas Court of Appeals (on remand) held that Tex.R.Civ.P. 13 (the civil procedural rule against frivolous pleadings that includes the possibility of sanctions) did not override the Penal Code provision, and they set James Vasilas' case for trial.

Vasilas fought back, taking the Dallas appellate opinion up to the Texas Court of Criminal Appeals, arguing the Dallas court was wrong. Amicus curaie briefing was filed by such noteables as the TTLA and the TADC. This time, the Texas Court of Criminal Appeals found the doctrine of in pari materia does not apply, Rule 13 is a court rule adopted by the Texas Supreme Court and therefore not a statute to be construed with any section of the Penal Code.


Then comes Judge Sandoval ....

On October 6, 2008, Judge Charles Sandoval signed his memorandum opinion in the case that started it all (when he granted Vasilas' motion to quash the indictment). Judge Sandoval writes in pertinent part:

"....At any rate, it seems to me that fairness requires that the same standard for pleading should apply to civil and criminal attorneys.

"The State's attorney has governmental immunity, but the rationale for the immunity is similar to the rationale which protects the civil lawyer. These general principles with regard to pleadings have been in existence, I would assume, since before the founding of the nation. I would also assume this rationale applies to legislators' statements made in legislative chambers.

"I find that Mr. Vasilas' pleading could easily have been a mistake of law, or a mistake of fact or the result of carelessness. Accordingly, I find him not guilty. If this sort of case arises in the future, perhaps the defendant may wish to assert that he is protected by the First Amendment, the Fifth Amendment (due process), theSixth Amendment (right to counsel) and the Fourteenth Amendment (equal protection). Who knows what could happen if cert is granted?"


The Bottom Line

It's still possible for attorneys filing pleadings in civil cases to face criminal charges here in Texas. But James Vasilas has been found not guilty, and that makes this a happy day.

Congratulations, Jim.