Sentence First, Verdict Afterwards...

From Chapter 12 of Alice’s Adventure’s in Wonderland:

'Let the jury consider their verdict,' the King said, for about the twentieth time that day.

'No, no!' said the Queen. 'Sentence first - verdict afterwards.'

'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'

'Hold your tongue!' said the Queen, turning purple.

'I won't!' said Alice.

'Off with her head!' the Queen shouted at the top of her voice.

“Sentence first, verdict afterwards” is a classic line for criminal defense lawyers. Fellow Austin lawyer Leon Grizzard said it to me in court not less than a month ago. It popped back into my head when I read this story about a DWI case in the Houston Chronicle:

On the afternoon of the third day, the jury retired to consider its verdict. And that's when it got interesting.

While the jury was out, according to Price and her attorney, Paul LaValle, the judge started talking about what the sentence would be when the jury came back with a guilty verdict.

Then the judge decided she wanted Price to immediately take a drug screen urine test and ordered the bailiff to contact the Pretrial Services facility in the courthouse to arrange it.

The judge also said if Price tested positive, the results would be given to the jury, says LaValle…

So far, we only have a judge manufacturing extra punishment evidence for the prosecution. It’s a little out of the ordinary… but wait, it gets better:

Before the drug test could be arranged, the jury returned with its verdict.

Not guilty.

Price wasn't surprised. She said she felt the video clearly demonstrated that she wasn't drunk. Still, she was relieved. She was free.

Or so she thought. But Judge Johnson had different ideas. Having ordered the drug test, she instructed the bailiff to take Price away for the drug test.

That’s right. Over the defense lawyer’s objections this acquitted defendant was ordered to go take a drug test and then even forced to pay for it. For all the problems in Federal Court with taking acquitted conduct into account for increasing punishment, at least you have to be convicted of something.

So I guess we have to rearrange the saying. It’s not sentence first, verdict afterwards, it’s

Not Guilty First… Then the Sentence

Even better.  After all, if you’ve prejudged what the defendant should get before the jury comes back, it wouldn’t be logical to let the jury’s decision stand in your way. 

[Hat Tips: AHCL, Underdog & Blue Carp]

Texas Judge Rules on Police Blood Draws in DWI Cases

Even as Austin Police Chief Art Acevedo prepares to ‘train’ his officers to forcibly take blood from Travis County DWI suspects, a judge in Tarrant County has ruled that prosecutors may not use blood results from forcible blood draws done by improperly trained cops.

And, as of now, that appears to be all police officers. 

In my previous post, I predicted that Acevedo’s attempts to ‘train’ his police officers to take blood from DWI suspects that refuse a breath test would run into some legal problems: primarily that they wouldn’t meet the legal standards laid out in Texas Transportation Code Section 724.017 and would therefore be subject to a motion to suppress the test results.

As Robert Guest points out:

These cops had some EMT training. However, the law states that EMTs aren't qualified.

Police should not be drawing blood.

First, they have a vested interest in convicting the defendant, not attending to medical needs.

Second, if the cop actually kills or injures someone they have near complete immunity.

Finally, State law includes breath, blood, and urine for evidence of intoxication. What if the police start getting breath/urine warrants?

Ok. So the last one is not likely (yet). However, we don't want police playing nurse anymore than we want nurses driving the SWAT tank.

In the comments to the local Austin story about “No Refusal Weekends” many local citizens complained that the police would open themselves to civil liability if Acevedo’s plan was implemented. Actually, I think Guest is right: it would be difficult to mount a successful civil lawsuit.

But while I love the nurses & SWAT tanks line, I’m not as confident as he is that forced urine tests are so impossible. Painful? Orwellian? Perhaps.

But then again, they could be coming to a city near you

Austin Reacts To Forced Blood Draws In DWI Cases

Austin is the only Austin in Texas. Or, as the saying goes, “When you leave Austin, you enter Texas”.

And Austin has reacted – albeit in a non-statistically significant way – to the news that our Police Chief announced that he intends to stick it to every DWI arrestee that refuses a breath sample. As in stick a needle in their arm and draw blood.

And furthermore, he’s going to have police officers doing the sticking. Yes, again, with the needle. They’ll be trained though. They’re not trained now – but he’ll get ‘em up to speed.

KXAN ran a story on it, and included a link in their webpage. The type of webpage that allows comments. And Austin commented.

At last count, there were over 50 commenters, and here’s how the pros and cons ran:

4 folks thought it was a great idea.

1 person I categorized as ‘neutral’ although, that’s generous because what he said was:

Don't see a problem, except Officers should not be drawing the blood. The nurse at the jail can do it. Taking blood is a risky thing, and only a trained professional should do it. This not what cops should be doing.

Mr. Neutral didn’t read the story fully, because the story is about cops sticking the needle in. At any rate, I counted him as neutral because on some level he didn’t ‘see a problem’ with it.

The overwhelming majority said it was a bad idea. 46 commenters – out of 51 total – were against it.

A smattering of the con comments?

  1. This guy [Acevedo] has got to go.
  2. Maybe the cops will also perform surgery on accident victims. That would save a lot of money on doctors.
  3. We all know government agencies want an inch but take 100 miles. APD's intentions may seem like a good idea, but eventually leads to more government control and less individual rights. Are we are all guilty until proven innocent?
  4. What's next body cavity searches at a traffic stop?
  5. What happened to the Bill of Rights?
  6. This is the exact thing that our forefathers sought to protect us from.
  7. This is insane. This kind of precedent can lead to a very scary future.

My personal favorite? It’s a tie:

  1. I dont drink, but I don’t care for this idea. I hate blood tests more than I hate beets.
  2. Nothing scarier than a redneck cop with a mouth full of Copenhagen and a needle.

On a more serious note, KXAN has picked up on this ‘vibe’ with their story today about ‘Groups react to APD’s proposal’ and will be broadcasting a follow up story in less than 45 minutes. Looking forward to it.