The Campaign For DA


Random Tuesday Morning Thoughts

I wouldn't know "Judas" now if I heard it. And I had forgotten that I was all 
over Trump even way back then. 

  •  Derek Chauvin trial thoughts since I finally saw the Court's Charge. 
    • That Charge is here.  Haven't I preached for years that the jury instructions are the most important part of a criminal trial? As with most factually unusual criminal cases, the Charge in this case is unnecessarily long and confusing.  The jury won't understand it.
    • There are three counts. Count I carries with it a maximum of 40 years, Count II carries with it a maximum of 25 years, and Count III carries a maximum of 10 years. 
    • But before we look at each Count, here is Hot Opinion #1: The Trial Strategy That Wasn't. 
      • The only way Chauvin wins this case is to take the position that "I was out there doing my job. And I was doing what I honestly thought was reasonable and necessary. Yes, the man died on me. I'm very, very sorry for that. But, if I heard the doctors correctly, it looks like no one else would have died by the technique I used. But he did. I'm sick over that that. And  I would take full criminal responsibility for it if my actions had been unreasonable. But they weren't. I was trying to protect the community and something horrible happened." 
      • I would have had Chauvin testify and be like Colonial Jessup from A Few Good Men but a sympathetic Col. Jessup. Give me the Jessup as he sat at the table with Tom Cruise early in the movie. "You need me on that wall." Give me that, just tone it down a whole lot. 
      • And you don't let the prosecution get away with being all High and Mighty. To paraphrase Jessup, "You sleep under the blanket of the very [protection] that I provide, and then questions the manner in which I provide it?" Just get that message across without being Jack Nicholson crazy. 
      • All of that might not work, and probably shouldn't, but a version of that defense is something that you have to run with. It's all you've got. 
      • But Chauvin's lawyer is objectively bad. For crying out loud, he started off his closing argument with, "I'm going to apologize if I get a little long winded." Good lord, man. Why don't you just announce that you intend to bore them to death? He's an idiot. 

    • Now to the Jury Instructions. If the jury were to follow them, then causation is a done deal in favor of the State on all of the counts.  Any drug use or health issues of George Floyd becomes irrelevant. As I read it, unless Floyd would have died on the spot even without a knee on his neck, causation isn't an issue. 

    • But the defense lawyer is a moron and has spent much of his time fighting causation instead of stressing the reasonableness of Chauvin.  
    • Now with causation and lawyer bashing out of the way, let's look at each Count. 
    • Count I: The greatest offense the jury can select is Second Degree Murder, and it is shockingly easy to get to. 
      • All the State has to prove is that (1) Chauvin intended to cause Floyd pain -- an "assault", and (2) that "substantial bodily harm" which resulted in death occurred even if Chauvin didn't intend to cause substantial bodily harm. That's crazy that is all that has to be proved. Once again, it's intentional assault (causing "pain") + substantial bodily injury that results in death even if unintended. It's so nuts that the jury might ignore that part of the Charge (assuming they understand it.) That happens all the time despite their taking an oath.  They will ignore crazy laws that make no sense to them. 
      • But let's stay with  the first part -- the "assault" part -- for a moment. Doesn't an officer always intend to cause pain to an arrestee as the natural part of the job? That happens all the time and we don't have any problem with it, right? If a person isn't willingly cooperating then reasonable force can always be used to get him to comply, and that force will 99% of the time cause pain. So isn't an assault occurring all the time? Probably. But cops are never charge with causing an assault. Why? That brings us to the critical defense which applies in this case to all of the Counts. The following is taken directly from the charge: 
      • And even though the Charge refers to it as a "Defense", that's misleading. Chauvin doesn't have to prove he acted reasonably. No. The State has to prove he acted unreasonably. And they have to eliminate all reasonable doubt about that. That's a big deal. 
      • As in all the Counts, Chauvin shouldn't argue causation. He should argue his reasonableness.
    • Count II is "Third Degree Murder." Honestly, this seems harder to prove than Second Degree Murder.
      • Here's the definition taken straight from the Charge: 

      • It does not define "eminently dangerous."
      • It does not, incredibly, define  "a deprived mind."
      • Heck, it would have been helpful to even define "evincing" (which would be nice because I didn't exactly know what it means.) 
      • But regardless of the vague language, the State still has to overcome the "defense" of justifiable force by a police officer.  It's as important to Count II as it is to Count I. 
    • The final option for the jury is Count III "Manslaughter in the Second Degree." 

      • You know, the jury might lock on to that. There's no intent to cause harm, and they will like the word "negligence."  
      • But once again, the State has to over come the defense of reasonable force by a police office.  Can you be reasonably negligent? That doesn't make sense.  Did I mention the charge was confusing? 
    • So what's going to happen? Seriously, you could put these facts on a Law School exam and ask what crime, if any, did Chauvin commit. And a student could choose Count I, Count II, Count III or "Not Guilty" and still get an A on that exam. Any choice can be legitimately and intellectually argued. That makes this a dicey, dicey criminal prosecution. 
    • My wild guess: They convict him on Count III, Manslaughter. It will be a compromise made in all of the confusion. But don't bet the house on that. 
  • COVID denier Ted Nugent has tested positive. 

  • Lt. Gov. Dan Patrick says there are not enough votes in the Senate to pass Constitutional Carry that made it through the House. 
  • The book is great. The trailer looks cheesy. 

  • I reading the Washington Post article on "what happened to her", I was surprised to learn that she was a 14 year old runaway from Florida when the photo was snapped. She wasn't a fellow college student. When the photo hit the wire and appeared in photos all across the nation the next day, she was incorrectly identified as a "coed."

  • Jocelyn White, the first female meteorologist on metroplex TV has died at the early age of 68. Man, the male audience went gaga over her back in the day. 
  • This is about the only dumb thing that the judge has said in the Chauvin case. That ain't gonna happen:


Random Monday Morning Thoughts

The killer turned out to be Tucker Strickland, 21, who overpowered deputy Sherri Jones, 54, while she was escorting him through the basement of the Bowie County courthouse for a competency hearing.  Three years later, as his capital murder trial was about to begin, he pled guilty to murder and received a life sentence (parole eligible in 30 years.) Side note: Wise County still escorts its inmates through the basement for court. I was guessing that the New Boston courthouse was just as old, however, it's relatively new having been built in 1985.

  • Bridgeport coaching news from moments ago: 

  • This arrest was last year, but court records show she just received a four year sentence in prison last Thursday. (Cause number CR22658) Background.  

  • Texas gun news: 
    • There was a shooting in Austin yesterday which left three dead -- including a University of North Texas football signee. The suspect  is a former sheriff's investigator who was charged with the sexual assault of a teenager and who resigned from the department last year. (And although it wouldn't have prevented the shooting, a judge has to now take some heat for allowing an ankle monitor to be removed while he was out on bond.) 

    • Four year old killed in accidental shooting in Fort Worth. 
    • Two UNT students shot, but not killed, in the Kappa Sig parking lot over the weekend. 
  • The poll, which was conducted by The Dallas Morning News and the University of Texas at Tyler, showed that Matthew McConaughey would get 45 percent of registered voters with Abbott coming in at 33 percent. Why couldn't it happen? Trump was elected President of the United States.

  • This caucus, which might as well have been called "The Klan", was abandoned by QAnon subscribing Taylor Greene over the weekend because of pubic blowback. But not before embattled Matt Gaetz said he would join it, and crazy East Texan Louie Gohmert said he was "considering it."  

  • A member of the University of North Texas basketball staff died in a one car wreck on 380 near Decatur early on Friday morning. 

  • He just barely gets to use "I'm just a dumb teenager" card for this stunt, and that probably won't get him very far. He was later arrested.  

  • This Trump Insurrectionist was released by a federal court with a condition that she wear a mask away from her residence. She thought she'd trick it up a bit by wearing a sheer facial covering and flaunted it on social media. The judge has ordered her back to court to explain herself. 

  • This candidate for the Lake Travis ISD school board got arrested after not wearing a mask and "shoved an employee before forcing her way into a dressing room where she proceeded to call the Nordstrom Rack corporate office." I'm not sure which part of her rant is better: That she doesn't have to ID herself after her detention because of the "common law -- you should read up on it!" or that she is a "Christian woman of God" or that she claimed racism.  Video.

  • I'm not sure why a bobcat and a tiger cub found in a San Antonio home last month gave rise to 14 minutes of live coverage on a San Antonio station, but there is now a Wise County connection: The bobcat has ended up at animal sanctuary in Bridgeport.   

  • It's that anniversary date. 

  • We should have a Derek Chauvin verdict this week. I feel pretty good about a conviction, but I'd like to see the instructions to to the jury before firing off an official prediction. 


It's Friday -- Let's Get Out of Here

Random Friday Morning Thoughts

Ten years ago this week there was a multi-day civil lawsuit tried in Wise County which involved a mind-numbing number of lawyers. It concerned a motorcycle and FedEx collision. The jury, which included a criminal investigator from the Wise County Attorney's office, ruled in favor of Fed Ex.  (But I heard after the fact that there was some type of "high/low agreement" reached before the verdict which guaranteed the Plaintiff would at least receive something. (In exchange, he agreed to cap the verdict if the jury went wild in his favor.)   

  • Speaking of FedEx, morning in America means another mass shooting

  • The Texas House, on an 84-56 vote yesterday, approved open carry without the need for training or obtaining a license.  (Phil King - Yes. David Spiller - Yes.) 

    • There's almost no news coverage of it, but an amendment was made and passed, 145-0, which will allow the expungement of all former conviction of Unlawfully Carrying a Weapon. 
    • License to carry instructors were against the Constitutional Carry bill. Of course, it causes them loss of income since they won't be needed any longer.
  • I actually thought the releasing of the video of the shooting of 13 year old Adam Toledo yesterday would cause Chicago to erupt last night. I'm not real sure why it didn't. 

  • Meanwhile in Highland Park

  • I see an appellate problem in the Derek Chauvin trial. Yesterday, outside of the precense of the jury, he invoked his Fifth Amendment right to not testify. His lawyer asked him questions on the record about the decision to insure that it was knowingly, freely, and intelligently made.* Then the following happened.   Attorney: "You understand that if you were cross-examined by the State we could not attempt to limit the scope of your testimony. The State would be given broad latitude to ask you questions." Chauvin: "Yes." (Starts at 45 seconds here.)

    • Here's my problem. First, that's a blatant misstatement of the law. His cross-examination would be extremely limited by the Rules of Evidence if the defense lawyer did his job. For example, the prosecutor couldn't legally ask him about doing cocaine at a party 10 years ago. But it takes the defense lawyer to object to those kind of questions to prevent it from becoming a free for all. 
    • But the lawyer told him "he could not even attempt to limit" what the State could ask him about. You kidding me? And what makes it worse is that the judge and the prosecutor just stood around like stooges and didn't correct the misstatement. 
    • So what if later the Defendant alleges ineffectiveness of counsel? "I wanted desperately to testify," he says, "But I only chose not to because of the advice I got from my  lawyer, and he told me the prosecutor could ask me about anything, and there wouldn't be anything he could do about it. The judge was there and heard him tell me that.  That frightened me away from testifying." And he has absolutely proof on the record to back this claim up. 
    • (*The whole question and answer exchange about invoking the Fifth is a bit weird. The only purpose of it is to protect the lawyer from a claim on ineffective assistance. It has nothing to do with protecting the client. That's ironic here because the lawyer laid out a great claim for ineffective assistance for everyone to see. That wasn't some type of sinister plan.)
  • Random Pat Robertson image from yesterday. (He actually was going on a rampage against bad cops which makes me wonder what happened to Pat Robertson.)  

  • This was out of El Paso on Wednesday morning. It is wild. Video.

  • Sad to see the passing of Decatur attorney Jean Bishop. She was always incredibly kind to me.  She was a also the former elected Wise County Attorney but there's been hardly no mention of that.  
  • The Texas Court of Criminal Appeals has some nutcase judges. Due to Supreme Court rulings, they were forced to commute the death sentence of a mentally ill man on Wednesday who had been in prison for over 40 years. But not without dissent. Three judges said that even if upon resentencing he receives a life sentence, he would automatically be eligible for parole because he has been in prison for so long. And so, the three said, he'd probably be better off in prison because TDC has so much to offer him! The judges are Michelle Slaughter, Bert Richardson, and Kevin Yeary. 

  • I haven't posted the Texas COVID Hospitalization chart in a while because it has been going consistently down for weeks. But now it has leveled off and even showing a slight uptick. 

  • Time which has passed since the Wise County Sheriff's Office has failed to solve the murder of Lauren Whitener in her home at Lake Bridgeport: 651 days.
  • Messenger: Above the Fold 


Random Thursday Morning Thoughts

Yet another thing I didn't remember. The verdict: He was acquitted on three counts of perjury, but found guilty of one count of Obstruction for "misleading" a grand jury. I ranted against the Obstruction verdict at the time. In 2015, a federal appellate court overturned the conviction for insufficient evidence.

  • That Burleson police shooting ended up to be a wild story. As I understand it by deciphering this story from the Fort Worth Star-Telegram, this is what we know:
    • It started as a traffic stop at 4:15 a.m. in a residential neighborhood not far from the Burleson High School stadium. 
    • A Burleson officer was shot three times (he will survive.)
    • There were three people in that car: Two men and one woman. The woman was in the front passenger seat.
    • They then drive away and abandon the car about a mile south. It tried to figure out from the news reports where all this happened and here's my best re-creation: The shooting is at the top red x and the car is  abandoned near the bottom "x". It is burned. 

    • Here's where it gets wilder. At 7:15 a.m. the three approach the house of Phillip Waddell and the female, wet and muddy, "bangs" on the door. Waddell "met the suspects with a shotgun and yelled at them to get off his property."
    • The Waddell house (approximately at the circle below) looks to be about a mile from where the car was abandoned (at the "x"): 

    • Waddell's mother, Robin, lived "across from" Phillip, and he was in contact with her. At 8:15 a.m. Robin texted Phillip and told him she was going to sit on the porch and watch the helicopters involved in the search for the people.
    • It now gets really crazy. At 8:45 a.m., Robin Waddell, 61, shows up on foot at the Burleson PD with gun shot wounds. She had been "carjacked." She later died. 
    • Cops, with the license plate number of Robin's vehicle, enter it into a database of license plate readers located around the state. (I've told you for years they exist.) Later that morning, an automated reader in Denton gets a hit showing the vehicle headed north on I-35. Two men are in the vehicle based upon police observations according to the Star-Telegram report. 
    • I'm not sure what exactly happened after that, but Jerry Don Elders, 39, was arrested around 2:00 p.m. in some woods in Gainesville. They think he is the shooter and was driving the car at the time of the initial stop in Burleson. 

    • I don't know about the other guy. The Star-Telegram says they "were still searching for him in Gainesville on Wednesday evening." NBC5, however, says he has been "located" but didn't imply that he was with Elder at all in Gainesville. 
    • The female who has with them has been "interviewed." 
  • A general manager from Allen Samuels Auto Group gave Baylor coach Scott Drew a Jeep at the victory parade two days ago and added he could use it to "recruit, pull some people out of the hood."  Video. Baylor gave the Jeep back and issued a statement

  • Man, there was a wild fight on Fox News last night between Dan Bongino and Geraldo Rivera. Two clips of it are here

  • The Texas Senate voted yesterday to have the government set the policy of what a private hotel can allow on its premises. 

  • I've written another Two Act Play.
    • Act I

    • Act II

  • Hey, Josh, remind me why they are there.

  • Never a question about this one.

  • For clarity, Trump actually raised the troop level to 14,000, but then struck a deal with the Taliban in February 2020 to remove all U.S. Troops. Biden is just honoring that agreement (but actually extending the deadline from May to September.) Still, let's get out there.
    Preach on!

  • Photo of how it all started in Afghanistan on October 5, 2001, below. I remember it was a Sunday and the announcement came shortly after noon. I was in the parking lot of the First Baptist Church of Bridgeport and remembered watching a lady cry as a group gathered around a car to listen to the radio broadcast. I wondered then if she was over-reacting. To this day, I'm still not sure.

  • Nerdy Legal Stuff: Government officials get sued all the time, but I'm curious about a case on the Wise County district court docket today filed against the D.A.'s office for the simple reason that, after much Googling, I discovered the Plaintiff's lawyer has argued before the U.S. Supreme Court before. (Local cause no. CV20-10-827.) I'll have to find out what it's about. 
  • Pete Rose turned 80 yesterday. That doesn't seem right.