Pre-Trial Release Officers

 

Who acts like a probation officer, and talks like a probation officer but isn’t a probation officer?  Well, they go by many names; some counties may call them a pre-trial release officer, or a bond compliance officer or a pre-trial services officer.  But whatever the name, the job is the same: to monitor a defendant’s compliance with their bond conditions.  Now we have discussed bond conditions in an earlier post, and they are a list of things that a court has ordered a defendant who is out on bond to do, or not do, or risk having their bond taken away or raised.  Well, who checks to see if a defendant is following those rules?  You guessed it: the pre-trial release officer (or whatever name that county has for that job).

If a defendant is assigned to a pre-trial release officer, the experience is much like being assigned to a probation officer.  You will meet with them and let them know some information about you like where you live, where you work, and various ways to get a hold of you.  This person has a job to do: to monitor you.  They are not paid to be your friend or to be your enemy, they are simply there to report compliance or non-compliance. If you follow the rules, they can be useful in the court proceedings (more on that later).  But if you don’t follow the rules, they are supposed to report that failing to the judge and the prosecutor’s office.  It’s not personal, it’s their job.  What the court and/or the prosecutor’s office does with that information is up to them.  As for the pre-trial officer, they have no independent power and are simply there to gather information and monitor you.  They can’t lock you back up, but they can certainly report you to the people who can.

Defendants assigned to a pre-trial officer will generally be given a set schedule for when to meet in person.  These meeting dates and times are important: this isn’t Supercuts; bond compliance officers don’t like drop-in customers.  Additionally, if a defendant was court-ordered to do something like install an ignition interlock in their car, or report to drug counseling, or provide proof of employment, expect that all that paperwork showing proof of compliance (receipts, certificates, paystubs, etc.) will need to be turned over to the officer.  A safe bet would be to keep a copy for your own records of anything that is turned over, in case something gets lost or misfiled, you will then be able to have your own proof if needed.

As frustrating and intrusive as having to report to a pre-trial officer is, there is one potential upside.  A defendant who is following the rules now has a neutral court officer who can report to the judge or prosecutor that the defendant is in fact doing what they have been told.  This is what I call “building a record of success”.  Meaning, that compliance officer is now documenting that every hoop the defendant was asked to jump through, they did.  This can help a defense attorney in negotiations with the state sometimes when perhaps the prosecutor was not inclined to offer probation or deferred adjudication.  A neutral record of success may be just the ammunition needed to help sway that reluctant prosecutor.

Of course, the downside of a having a compliance officer monitoring you is that if you are breaking the rules, you are now creating a record of failure.  Such a record can certainly impact how the court, the prosecutor, and perhaps even a jury might see you.  The safest bet as always is to follow all court-ordered bond conditions to the letter.

Out on Bail but Not Out of Trouble: Bond Conditions

 

A person gets arrested, goes to jail, makes bail and gets released.  Other than showing up for court, he’s got nothing to else to worry about, right?  Unfortunately not, in many cases.  In Texas, Chapter 17 of the Code of Criminal Procedure authorizes judges to set what are called bond conditions on a criminal defendant.  Each of these conditions are things that the defendant must do, or must not do, or risk having their bond either revoked (taken away) or their bond amount raised, either of which can mean going back to jail.

These bond conditions fall into two categories, general and offense-specific.  Let’s talk about general bond conditions first.  General bond conditions are broadly-worded warnings from the judge to the defendant like “don’t break the law”, or “don’t use drugs without a prescription”, or “make all your scheduled court appearances”.  Let’s say you are out on bail for offense X and then six weeks later you are arrested again for offense Y, well, the judge on offense X can revoke or raise your bail for that original case.  That can mean another trip back to jail, and more money out of your pocket to get free.

General bond conditions don’t even have to be formally ordered by the judge to take effect.  It is simply assumed that defendants know that if they break the law, use illegal drugs while out on bond, or skip out on court, they are putting their bond at risk.  As the old saying goes, ignorance of the law is no defense.

While general bond conditions can apply to any type criminal charge, offense-specific bond conditions are, as the name says, linked to that particular offense.  For example, an alcohol-related offense can trigger a bond condition that the defendant must use an ignition interlock device on their vehicle or must wear a SCRAM alcohol ankle monitor.  White collar or financial crimes may trigger bond conditions to not hold other people’s money in trust or even handle money at a charity event.  Family violence allegations can trigger a whole host of bond conditions such as being forbidden to possess firearms, to have no contact with the alleged victim of the offense, or even being subject to GPS monitoring.

And the list goes on and on.  Computer crime?  There can be a court order to stay off the internet.  Crimes against a child?  There can be an order to have no contact with anyone under the age of 18.  The possibilities are almost endless.  The law in Texas gives judges the ability to order any “reasonable bond condition” on a criminal defendant who is awaiting their ultimate day in court.  Now, what some may see as reasonable, someone else may consider to be overly burdensome.  So even though a criminal defendant is considered innocent until proven guilty, the experience of being a criminal defendant out on bond can sometimes not feel that way.

 

Talking Texas Law

Please join me at my new YouTube channel, Talking Texas Law as I discuss relevant legal topics with a Texas focus.  Although our overall American justice system shares many similarities from state to state, each state does in fact have its own way of doing things.  I love the law and I enjoy talking about the ins and outs of the Texas legal system!

Who Owns the Case?

I have heard a variation of that question many, many times.  And it is a perfectly reasonable question.  Many people think that with a phone call from the complaining witness / victim to the police, a judge, or the prosecutor’s office, a case can get dismissed.  It’s logical to assume that if a victim was the person who called the police in the first place to get the ball rolling on criminal charges being filed against a defendant, that same person can call or do something to make those same charges get dropped.  Logical, yes…but totally wrong.

Why is that?

The answer is that in Texas, the State owns the case from the minute the police arrive all the way until the final disposition of the case.  That means first the responding police officers, and later the local prosecuting attorneys, have complete discretion on whether or not a case gets filed, and whether or not a case goes forward to prosecution.  Although the victim in a case can ask to have charges dropped, they have zero control over the case.  Fair or not, the prosecutor’s office has the final call.

If a victim tries to call in or correspond with the prosecutor’s office in an effort to get a case dropped, it is not unusual for that office to refer the person to a Victim’s Advocate Coordinator (or VAC).  Via a phone call, email or face-to-face meeting, the VAC will typically talk to the victim and make sure they are not being pressured or threatened by anyone into asking to have charges dropped.  It is important to consider that these VAC don’t work for the victim or the defendant, they are employees of the prosecutor’s office, with all that entails.  It has been my experience that while some VACs are diligent about making sure the victim’s wishes are recorded in case file, others frankly are obstructionist and actively seek to dissuade the victim from requesting to have the case dropped.  In any event, the VAC will likely tell the the victim to fill out an official form requesting a case be dismissed, such as an Affidavit of Non-Prosecution, rather than requesting it over the phone or in an informal letter.  But again, fancy or formal, the victim’s request to have a case dismissed carries no official weight.

This is not to say that the victim’s request to drop charges is meaningless.
The accused’s defense attorney would love to know that a victim is feeling this way.  And an experienced prosecutor, too, should find this information useful as they are weighing and prioritizing court resources.

There is a hidden benefit to defendants when the State has total ownership over a case.  Just like a victim cannot force the State to drop charges, they cannot force the State to file charges in the first place, or force the State to work a case out in a particular way.  A victim cannot, for example, force the police to file charge X instead of charge Y or make the State’s attorney only offer prison time in a case and not offer probation.

For good or for bad, once a criminal case gets filed  in Texas, the State has complete ownership of the case unless and until the matter is finally put to trial before a judge or jury.

Helping Tomorrow’s Attorneys Today

Recently, I had the pleasure and privilege to help out a team of University of Texas School of Law students prepare for an upcoming competition hosted by Stetson University in Florida.  I was asked to judge a practice, or “spar” round, whereby the students could practice their advocacy skills in completion-like conditions, with an opposing team and a judge making rulings and asking questions from the bench.  This particular completion is focused on a mock pretrial hearing involving issues of evidence suppression under the 4th Amendment, the admissibility of an expert witness’s testimony, and a defendant’s motion to sever his trial from that of his co-defendants in a mock federal conspiracy charge.

These trial advocacy programs are always in need of experienced attorneys who can act as coaches, mentors, and judges for their various teams.  Each time I lend a hand (in a large or small way) to a trial advocacy event, I always find it very energizing being around these driven, upcoming professionals.  We lawyers and lawyers-to-be tend to be of a competitive nature.  And the law students who actively seek to pit themselves against their peers in legal advocacy contests are can be the most competitive of the bunch.  I never fail to be impressed by the diligence and hard work these students bring to the fight.  If you are a lawyer, don’t be shy about lending a hand; it’ll do you good.

Not to sound like a dinosaur, but when I was in law school, most trial advocacy competitions focused on the old standby classics of Moot Court (appellate arguments) and Mock Trial (jury trials).  While these were fun and instructive, I would have welcomed the more expansive opportunities that today’s law students can take advantage of when it comes to competition.  Today, there are competitions embracing many facets of the legal practice, such as the aforementioned pretrial hearings, meditations, negotiations, voir dire, brief writing, and more.

If only there was a competition entitled “Fee Setting and Fee Collection”.  Now that would be something!

Parking While Black

Court Grapples with “Parking While Black” Scenario

The 7th U.S Circuit Court of Appeals is hearing arguments in a case that involved police officers searching a parked car.

Sounds pretty routine?  Well, this particular search, in the opinion of at least one law professor, this case involves “an egregious instance of police aggressively targeting black motorists who may be illegally parked”

Police can justify a detention of a person if they witness an infraction of the law.  If that detention leads to the discovery of evidence of a crime, that evidence will likely be held admissible.  This is the common, everyday scenario where an officer observes perhaps a traffic violation in a moving vehicle, stops that vehicle, makes contact with the driver and then based on contact with the driver or based (let’s say the driver is acting intoxicated) on a view of the inside of the vehicle (maybe they see an open container of alcohol or evidence of drug use), develops probable cause to search the car further or even arrest the driver.

In the situation before the 7th Court, the police saw a vehicle which had parked too close to a crosswalk.  Based on that infraction, they parked their patrol cars in a manner to block the suspect car in, and then made contact with the car’s occupants.  They observed a back seat passenger with a gun and subsequently arrested him for unlawful possession of the firearm.  That defendant sought to exclude the gun from evidence under the theory that it was obtained in violation of the Fourth Amendment.  A three-person panel of 7th Circuit judges had previously ruled that the officer’s detention and search were justified and not in violation of the Fourth Amendment, but that decision has been vacated and the entire court will hear the issue on re-argument.

The crux of the matter is whether or not this court will give a stamp of approval to the police detaining and searching for violations of essentially such de minimus statutes as municipal parking ordinances.  No one denies the police’s right and authority to pass by a parked car and shine a flashlight inside.  But to block a parked car with trio of patrol vehicles, essentially creating an instant detention of the vehicle’s occupants, should that be given the judicial thumbs-up?

Although 7th Circuit decisions are not binding here in Texas, nevertheless a case to keep one’s eye on.  What appears in another federal Circuit one day may certainly appear in the 5th Circuit or a Texas state court, or even the United States Supreme Court, another day.

Real Americans Serve on Juries

            We Americans are proud of our rights – and (forgive the pun) rightfully so!  The unique balance between governmental power and individual freedoms outlined in our Constitution and Bill of Rights has survived many challenges, and adapted to significant changes in culture over the many years of this Republic.

            A thought struck me the other day.  Many of our so-called individual rights, are just that: individual.  That is, I don’t need anyone else to do anything for me to exercise my rights.  If I wish to speak my mind under the auspices of the First Amendment, I can, regardless of if anyone listens to me or agrees.  If I want to own a firearm as authorized by the Second Amendment, I can as well.

Enshrined in Bill of Rights is another precious individual right: the right to a trial by jury which is guaranteed by the Sixth Amendment. But let’s think a bit deeper about just what that right demands.  If I, as someone accused of a crime, choose to exercise my right to a jury trial, that presupposes that there is a jury to be had.  Unlike speaking your mind freely, or holding onto a family heirloom firearm, my choice to exercise this particular right depends on YOU showing up for the jury summons.  Without YOU, my right is nullified.

A county or district clerk may send out four or five hundred jury summons just so they can get a jury pool of one-hundred and fifty actual warm bodies to show up on a Monday morning.  That’s enough….but it’s not GOOD ENOUGH.  Yes, just like with funding drives for public television, there are usually “enough” people who pitch in to keep things muddling along at a basic level, but thats it.  We can and should do better.

Now I know that a “jury of my peers” doesn’t mean an exact duplication of folks my same age, gender, ethnicity, and station in life.  But when only a fraction of the citizenry summoned bother to appear, what does that really say about how much we value the rights we (supposedly) hold so precious?  A defendant should have a true cross-section of the community to form his or her jury panel from.  And the State should as well.  If the citizenry is going to be the voice of the county or state on issues of crime and punishment, shouldn’t the jury panel ideally be a true representative sample, instead of simply a group made up of those whose sense of civic duty outweighs their sense of “But I’m too busy”?

Its cliché these days to say that one honors the military veterans “who fought and died for our freedoms”.  But when one of our fellow Americans chooses to exercise one of those freedoms, their freedom to choose a jury trial, we more often than not will not respond to that jury summons, which goes right to the trash.  Talk is cheap.  Action speaks louder than words.  When the jury call comes, answer it.  It’s the American thing to do.

Don’t Just “Don’t Drink and Drive”

DWI: It’s not just for alcohol anymore

dont drink and driveDon’t Drink and Drive.  We have all heard it a million times.  It’s snappy.  It’s easy to remember.  But from a legal perspective, it’s woefully incomplete.  However, “Don’t Drink or Take Impairing Levels of Illegal Street Drugs, Federally-Prescribed Medications, Over the Counter Medications, or Other Substances or Mix the Aforementioned Substances Together and Drive” doesn’t fit on a bumper sticker as nicely.

The “I” in DWI is Intoxication.  And in Texas, that is defined  as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body” or by having a blood alcohol concentration of 0.08 or more.

It’s not so simple as to say “Don’t Drink and Drive”.  What this means is that if you are planning on driving, you have to guard against becoming intoxicated (what I’ll call being “not normal”) by more than just alcohol.  Certainly, controlled substances (illegal narcotics) can have an impairing effect.   But even if you are “not normal” because you’ve taken legally prescribed medicine, or even over the counter medicine, you are still considered intoxicated under Texas law.

Another subtle danger that the law on intoxication speaks to is the “combination of two or more” substances like illegal drugs plus alcohol or prescription medications.  Many drugs, legal or otherwise, can have what is known as a synergistic effect  where the two drugs taken together (or with alcohol) can have a stronger effect than when taken apart.  They can enhance and multiply the effects of each other.  Again, this doesn’t have to be street drugs we are talking about.  Is your over the counter cough medicine acting synergistically with your prescribed seasonal allergy meds, or your antidepressants, or your blood thinners?  Better find out before you get behind the wheel.

Remember, DWI is not an “intent crime”.  The State of Texas does not have to prove that you intended to drive while intoxicated to convict you.  They only have to be able to prove that you did.  So even if the impairment is accidental, you may still be held criminally liable.  Know your limits.  Know what you put into your body.  And always, drive safe.

All That (Virtually) Glitters Is Not Gold

On June 25, 2016 a judge in Miami, Florida dismissed a money laundering charge against a defendant accused of selling $1,500.00 worth of Bitcoins to undercover police who were, according to their cover story, going to use the virtual currency to then buy stolen credit card data from Russian gangsters.  (Read the article here ).

what is bitcoin

Although the judge granted the Motion to Dismiss on various grounds, key among them was her finding that, at least under pertinent Florida money laundering statutes, the virtual currency Bitcoin did not meet the definition of “money”.  Specifically, it did not fall under what Florida considered a “monetary instrument”, nor did the sale or transfer of Bitcoin amount to a “financial transaction” as contemplated by the State.

Would Texas judge reach a similar ruling applying Texas statutes to the same facts?  Texas Penal Code Chapter 34 governs all prosecutions for money laundering in this State.  Under Section 34.02 of the Texas Penal Code, it is a crime if a person (among other things) “finances or invests or intends to invest funds that the person believes are intended to further the commission of criminal activity.”  So a person selling Bitcoin to someone that the seller knows is going to use to commit a crime with, like acquiring stolen credit card numbers, may certainly fall under this prohibition.  The key issue becomes, as in the Florida case, is Bitcoin actually “money”?

Again, looking to Texas Penal Code Chapter 34, the Texas statute does not wrangle over “money” or “currency” as such, but instead focuses on the term “funds”, which it defines pretty expansively.  “Funds” includes not only coin or paper money designated as legal tender by the United States or another nation, but also various bank drafts, security instruments, certificates of stock, and even gift cards with value stored on them.  Most importantly, the Texas legislature (either by accident or design) left themselves a little wiggle room in the definition of  “funds” to include “currency or its equivalent”.  Those three words – or its equivalent – may be all the statutory fig leaf that a Texas prosecutor may need to justify a Texas prosecution of the Bitcoin scenario that was rejected in Florida.  This would mean however, there would need to be expert testimony (from both sides likely) about what exactly Bitcoin is or is not and what it real equivalent value is.  Such a showdown would certainly be fascinating to see.

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