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Damocles Sword

Ed Chernoff — Fri, 05 Oct 2012 02:20:00 GMT

A famous Greek moral anecdote tells the tale of a man who was given great wealth and power, but ruled with a sword hanging above his head, held precariously by a thread from a horses tail. The great philosopher Cicero, in reference to this tale, asked the rhetorical question, "Can there be anything happy when danger always looms?"

I currently have two clients who lived with this danger, and all they did to bring this upon themselves was to plead guilty and be placed on probation. Now, most people who are placed on community supervision, be it probation or deferred adjudication, find the conditions difficult but reasonable and manageable. If a probationer reports regularly to a probation officer, passes his drug tests and completes his community service, he is likely to be discharged when his term ends.

However, there are those few but increasing number of individuals who never have a chance to complete the terms of their community supervision, because the Federal Government intervenes and removes them from the country while they are being supervised. Permanent residents, who have spent decades in the country, are being "removed" after being placed on community supervision. Obviously, no probationer can report to his probation officer when he has been shipped off to another country. As a result, a Motion to Revoke is filed in his absence.

Some would say "Good Riddance", and I understand the sentiment. Why should a person be allowed to stay in the United States, if he violates the laws of the country? However, my mom always said, "Criminal cases are like a box of chocolates. You never know what you're going to get." Let me tell you about my two clients.

The first one was driving his truck down a highway in Lubbock, Texas. He was a legal resident of the United States, but a citizen of Guatemala. He had lived for twenty years in New York, but he was in Lubbock because his employer had sent him to deliver items across country. He was in a big rig, and as he veered down an exit to connect to another highway, he missed a stop sign and ran into a pick up truck. Tragically, two people died.

My client was sober and had a good driving record. The stop sign he missed was famous in the community because it was partially hidden and many accidents had resulted in the months prior to my client's. Nonetheless, this case was prosecuted as a criminal case. His lawyer negotiated probation. My client went back to New York and began serving the term of his probation. Almost a year later, he received a letter from ICE telling him that his work visa was being revoked. Soon after that, he was told that his status was being terminated and had to leave. He did.

Over a year later, with no family or friends in Guatemala, he made his way back into the United States. He did so the hard way, by coyote. He was caught at the border in Arizona. The Federal Government prosecuted him for illegal reentry. He was then shipped to Lubbock to face a charge that he had violated his probation. The accusation was that he had failed to report to his probation officer.

My second client sits in the Harris County jail. In 2006, when he was 17 years old and in High School, he and other youths were arrested and charged with Burglary. His lawyer suggested he pled guilty and was placed on five years deferred adjudication. As a condition of the deferred, the Judge required that he serve 60 days in jail. Because he was still in school, the Judge agreed to let him serve the time during summer break.

For one year my client reported to his probation officer, served exactly the number of community service hours requested of him, never failed a drug test, paid his fees and passed his junior year. When he went into custody to serve his 60 days he was immediately identified by ICE and a hold was placed on him. After the 60 days he was hauled off to the immigration detention center. Four months later he was deported to Mexico.

He was eighteen, and had spent almost the entirety of his life with family in the United States. The only person he knew in Mexico was his grandmother in Oxacao. He was dumped at the border in Nuevo Laredo. The Mexican authorities detained him and took his money. He lived with another deportee in the city for two weeks and tried to sneak back over the border. He was caught and bussed back into Mexico.

Finally he made his way to his grandmothers. For a year he was unable to obtain work or attend school. His mother, having exhausted all legal attempts to bring him back to the United States, paid a coyote $4500 to sneak him back over the border. In the United States, he worked in the construction business, starting on the roof and ultimately moving up to framing. He got his GED. In four years he had bought a house and raised and supported two children.

He was not aware that shortly after his "removal", the Court had signed a Motion to Adjudicate his deferred adjudication. He lived an exemplary life, and had no idea that a warrant was hanging over his head. One day a neighbor called the police because his music was too loud. The police arrived with a warning. As a matter of protocol they asked to see his drivers license, and found that a warrant was outstanding and he was arrested.

In both of these cases, the family hired me to defend on the Motion to Revoke. In both of these cases, the offer is a term in prison. In both of these cases, ICE waits to further deport. The question I have (and the question I have poised to the Judges in each case) is, of what benefit to our society is it to sentence these young men to prison? They both attempted, and succeeded when allowed, in performing their conditions of community supervision. What exactly is taught them by further incarceration?

Sometimes procedure overrules common sense. I asked one Judge to terminate my client's community supervision rather than convict and sentence him. He responded, "I'm not going to reward him for being an illegal alien." I responded, "He wasn't illegal, Judge. The United States Government made him 'illegal'. "

How To Erase Your Criminal Record

Ed Chernoff — Wed, 29 Aug 2012 19:29:00 GMT

Back in the day, there wasn't as much concern from clients about erasing their criminal record. This was especially true when the case had been dismissed. The client felt comfortable with a notation of dismissal, since he felt the result was all that really mattered. As the years progressed, more and more clients became concerned about the traces left by their arrest, charge and prosecution. What accounts for the difference in attitude?

The damage from a criminal record hasn't changed through the years. It effects nearly every dream a person has: jobs, housing, licenses and relationships. This was true in the 80's as is it is today. What has changed, however, is the ease and speed by which criminal information can be obtained. An employer no longer has to take a trip down to the District Clerk's office or pay a large fee to an investigative agency to look into someone's criminal background. This information is now instantaneous and cheap. It literally takes the click of a mouse.

Technology has reached the point where a single thumb drive can contain a hundred thousand individual criminal records. Back in the 80's when I worked in the District Attorney's Office, it was entirely possible not to be fully aware of a defendant's criminal record. This was especially so when the culprit had out of state charges. That has ended.

Now, I have many clients come to me because they were denied credit or refused an apartment lease as a result of a past criminal record. Because of the ease in obtaining this information, I can see it being used in all sorts of decisions. Marriage agreements? Day Care approval? And these organizations may not care whether the case was ultimately dismissed. In this day and age there is a "better safe than sorry" mentality.

In Texas, a felony case is not necessarily expungable, even after a dismissal. Unlike other States, a deferred adjudication is not eligible for an expunction. (Although some relief may be granted under the non-disclosure statute.) The best course of action is to give us a call at Chernoff Law and let us investigate the possibility of erasing your record. Who knows? In three months, you may be celebrating a clean criminal record once again!

Challenging Your DWI Charges

Chernoff Law — Wed, 22 Aug 2012 02:01:00 GMT

Drinking is a common form of entertainment and relaxation for many people around the world, and unfortunately there are times in which a person gets into the car and chooses to drive while intoxicated. In the event of receiving a DWI charge, all hope is not lost; there are several ways in which a skilled and experienced attorney can help you to challenge the accusations. It can be easy to assume that once accused of driving under the influence you will never drive again, or your record will be scarred for life, and this doesn’t have to be the case.

At Chernoff Law we are a legal team with years of experience in defending criminal charges, and we understand that every person has the right to prove their innocence, and our firm wants to help you do that! Here are a few ways in which we can seek to challenge the court to fight your DWI charges. First, did the officers make you illegally stop, or did they have proper reasoning to check your vehicle in order to accuse you of driving under the influence? Another key note when fighting these charges is to prove to the court that the field sobriety test given by the officer on the scene is not a complete reliable source of evidence against you.

Depending on the test that was given there tends to be no more than 0% accuracy when trying to prove intoxication of a driver, specifically when administering balance tests. Even breathalyzer testing can prove to be inaccurate, and as your attorney we will seek to find every angel for which we can prove your innocence. When doing proper research as an attorney, we will also look into any available camera or video images that may have been present at the time of your DWI incident, to make sure that the police officer on duty complied with the legal requirements pertaining to pulling your car over. Not only that, but we will also examine every police camera that you may possibly appear in.

This would include the camera that is on the police officers car, cameras in the police station during the time of your arrest, etc. If there is an inconsistency, we want to find it so that we can use it to fight on your behalf! If you were arrested, you most likely had a blood test taken in order to medically prove your intoxication and these too may prove to be inaccurate. Due to the many procedures involved in blood tests, there can be events in which the medical professionals don’t follow the proper procedure, if this happens we will be sure to use that in court. Another important aspect of proving your innocence is if there were any witnesses around that can be spoken to, these people can be on the scene or people from the locations you allegedly left to drive away drunk.

One of the most important, and common, avenues we can use to challenge your DWI is if the arresting officer failed to share your Miranda rights. Sure, we have all seen a law show and are familiar with it; however, if the arresting officer does not read them to you at that moment, because it is a law to do so, we may be able to use this in court as well. During our preparation for fighting your case, we will also examine the background and credibility of the officers on duty who conducted your arrest. If there are any questions that can be raised as to their reliability or lack of professionalism, we will be sure to address that as well. For individuals who suffer from medical conditions, being pulled over and field examined for driving under the influence may be a trying task.

There are situations for which a person is medically unable to comply with the demands of these tests and therefore will fail the field sobriety test. If this is the case we will want to make sure that we understand the full effects and complications of your illness in order to use it as a defense tool. A simple mistake by the court may also provide a good challenge for your DWI dismissal, and that would be the failing to grant you a speedy trial. Specific to each state, there is a certain time frame by which you must appear in court to fight your case, and if the court doesn’t provide this for you in a timely manner we will fight against it. Having a DWI attorney is crucial, and at Chernoff Law we want to fight for you! Contact us today for more information!

What's wrong with the Jacksons?

Ed Chernoff — Fri, 17 Aug 2012 18:26:00 GMT

I get asked every recent day about the drama surrounding the Jackson family. I've been told they are fighting. Over the kids, or something like that. People assume that I have some special insight into the family simply because I sat in the same courtroom with them for four weeks. The truth is, everything I know comes from what Dr. Murray revealed to me about conversations he had with Michael. (This is for Dr. Murray to reveal, when and if, he decides.)

My interaction with the Jackson family was limited to stares and disdainful looks as we left the courtroom together. Joe Jackson, in particular, spent my entire closing argument contorting his face into an angry charicature. I think LaToya actually spoke to Michael Pena, my co-counsel, once. She wanted to know who he was. He responded by asking her who she was? I still get a kick out of that!

The one thing that was enforced for me during the trial is that there are two things that corrupt absolutely: 1. Money, and 2. The lack thereof. I know that the Michael Jackson estate was awash in debt prior to his death, and immensely valuable at the time of the trial. I also know that neither Sony nor AEG, two billion dollar companies, was subjected to any of the necessary scrutiny that they deserved during the trial.

Maybe one day, all will be revealed.

How to Hire an Attorney

Houston Criminal Defense Lawyer — Fri, 06 Jul 2012 19:05:00 GMT

I got a call today, like I do every single day, from a person wanting to hire a lawyer. I tried to answer all of her questions, and she appeared to understand my responses. Before we hung up, she asked how much it would all cost.

Inevitably, this is always the last question asked. I assume the caller and potential client asks at the end because she first wants to determine whether the lawyer she has called is worth hiring. Only then is the question necessary.

Sometimes I think this ought to be the first question asked. It's clear that a lot of people don't actually know what a good lawyer is worth. Many of the calls I get are from people who got my name off the Internet. I am unlikely to be the only person these people call, and they are sure to get all kinds of different responses to their fee question. How are they to know if they are paying too much?

Almost any lawyer just out of law school can afford a fancy website, so it does appear to the first timer that every lawyer is the same. And if every lawyer is the same, then shouldn't the potential client just hire the lawyer who charges the least?

Of course, most people would admit that every lawyer is not the same. A person charged with a crime is only guaranteed the best result if he hires the best possible representation. A lawyer is not a commodity, like a car or a refrigerator. But, we have reached a point as consumers, where we don't accept a price at face value. Almost all of us will go on the Internet to compare the best prices. This seems to be the prevailing attitude for everything we buy, from cruises to haircuts. So how much more should the best lawyer cost compared to the least?

My best advise to those who are trying to determine whether they are getting a fair deal, are to compare apples to apples. In other words, look at credentials side by side. Is the lawyer they are talking to Board Certified? Does he have experience in the District Attorney's office? How much experience? How many trials has he been involved in? How many years has he been handling charges of the type the client is facing?

Another thing you can do is use the Internet. Google the lawyer's name and location. Find out whether there is any information out there that would allow you to put a plus or minus next to his name.

My last piece of advice is, unless you are out of town and trying to hire a lawyer for a loved one, please do not to hire someone after only one conversation on the phone! Take the time to meet the lawyer you are interviewing. Spend time with him face to face. Trust me, there is a substantial amount of value in it. Everybody has a spiel. Your gut is valuable and the only way to use it is to look someone in the eyes. Good Luck!

The Danger of Grand Jury

Houston Criminal Defense Lawyer — Mon, 02 Jul 2012 19:00:00 GMT

Defense attorneys are always faced with the conundrum of whether to present their client to the Grand Jury. The lawyer can't be in the room with the client, and there is no control over the questions asked. A grand juror, or the Assistant District Attorney, can venture off into any area of interest. It is rare indeed when criminal defense counsel considers this a good deal, even with an innocent client. In fact, I'll go so far as to say, especially with an innocent client!

On the other side, most Defense attorneys think it's always a good deal to present information to the Grand Jury. That is to say, controlled information. Keep the bad out and provide the good – what could be wrong with that? Many good defense attorneys will provide packets of information, along with a letter to the Foreman, providing reasons why their client shouldn't be indicted. Seems innocent enough, and sometimes it actually works, especially with a cooperative Assistant D.A.

But danger lurks! Let me explain, and I think it best for me to do it by example. Last week I represented a businessman in Ft. Bend County who was accused by an employee of rape. She claimed two incidents of rape, a month apart. Her story was bull@&*%, but all it takes is an allegation and the ball starts rolling. I had no idea what the D.A.'s take on it was, but I was given the opportunity to provide information to the Grand Jury.

My client had passed a polygraph, and I certainly wanted to get this out. We also had a number of witnesses who provided statements that the accusation made was wholly inconsistent with the complainant's actions at the time of the alleged rapes. The accusation was made months after the alleged rape, and I wanted to highlight this in case the jurors missed it. But I had a problem.

It turns out that I had substantial information about the veracity of this complainant. I knew that she had made accusations about others in the past. She was also illegal, and was probably aware of the Violence Against Women Act that allowed protection for those with illegal status after an allegation of domestic violence or rape. I had cell records, which showed numerous phone calls to my client after these supposed forced sexual encounters. And I had evidence that the complainant had attempted to blackmail my client by threatening to go to the police and accuse him of rape.

So what's the problem? All good defense attorneys know that no matter what contrary evidence exists, a Grand Jury indictment is easy if the Prosecutor is hell bent on getting that indictment. They are the sole presenters, and it is extremely rare for a Grand Jury to contradict the prosecutor's wishes. By providing all the information the defense has, especially evidence that relates to the complainant's veracity, it is guaranteed that the prosecutor will have that information at the time of trial. This gives them the opportunity to clean it up.

The Moral? Unless an attorney is absolutely sure of the prosecutor's intentions, it may be best to leave something back. A lawyer who has the future of a client at stake, needs to mentally fast forward to trial. Losing the Grand Jury battle, is not losing the war. In this case, I kept the stuff from the Grand Jury that I thought I would use on cross-examination. Fortunately, I didn't need it. They no-billed. I called my client when I found out and told him the nightmare was over. He cried and thanked me. Right decision this time and one more life saved.

Trouble with the LSIR

Houston Criminal Defense Attorney — Fri, 29 Jun 2012 19:00:00 GMT

The latest tool Judges use in Harris County to ostensibly help them determine the appropriate sentences are these LSIR reports. First, a little education: An LSIR is a quantitative survey of offender attributes and offender situations relevant for making decisions about levels of supervision and treatment. In effect, it's a psychological and life circumstance test to determine whether a person would make a good probationer and what conditions would make him better.

What happens is this: After a plea of guilty to a criminal offense, the Judge will reset the case for sentencing. Then the probation officer in the Court will schedule an interview. The defendant will answer a series of questions about his home life, habits and financial situation. After the interview, a score is calculated and recommendations are made. And then, the Judge inevitably follows the recommendations at sentencing.

My opinion? It's voodoo. I think any information is helpful if it is merely an aid in the Judge's decision, but in Harris County these recommendations are taken as gospel. If the probation officer recommends drug treatment, it's a done deal. Once again, each defendant is minimized to a number, and placed in an appropriate slot. Frankly, I think it's an opportunity for Judges to defray their responsibility. There I said it, and I feel better!

The biggest problem I have with the LSIR is that it completely destroys the legitimate ends of plea-bargaining. I don't know about other attorneys, but I am not the least bit interested in agreeing to a sentence of probation or deferred adjudication if at the end, I have no control over what conditions my client has to suffer through. A Judge may think it merely an inconvenience for an accused to get shipped off to a six month in house drug program, but it doesn't work out that way for his family or employer.

I get it. Drug addiction is destructive, and family and job often takes a back seat to the habit. But does a person necessarily need intensive treatment because he has used cocaine in the past? Or marijuana? If that were the case, then say goodbye to the person to the right of you and the person to the left of you. They need treatment, and you are going to have to make do without them.

Welcome to the new Houston Criminal Law Blog

Mon, 18 Jun 2012 15:32:00 GMT

The blog at HoustonCriminalLaw.com is undergoing an interesting transition.

If you are looking for Stephanie Stradley's blog, please go to www.StradleyLaw.com/blog.

Otherwise, please book mark http://www.houstoncriminallaw.com/Criminal-Defense-Blog for future blog posts in this space.