During the last session of the Texas Legislature, a bill was passed to allow the creation of special “veterans court programs” in this state.  The governor signed the bill into law on June 19, 2009, and it became effective September 1, 2009.  What that means is that we could have already started this program.

The veterans court program was a small part of a larger law which was designed to address the special needs of the approximately 1.7 million veterans who reside in Texas.  Specifically, the law created the “Fund for Veterans’ Assistance.”  The fund awards grants “to enhance or improve veterans’ assistance programs, including veterans’ representation and counseling, and to make grants to local communities to address veterans’ needs.”  One of the most important improvements, though, was the establishment of special pretrial veterans court programs.

Here’s how the program works:  The first step is for the county commissioners court to authorize the court.  Texas Health and Safety Code Chapter 617 authorizes the commissioners court of a county to establish a veterans court program for persons arrested for or charged with any misdemeanor or felony offense.  There are no limits—it could be as simple as a drug or alcohol-related crime, or even domestic violence cases.

However, there are some limits.  A veteran is only eligible to participate in the veterans court program if: 1) the prosecutor agrees to the defendant’s participation in the program and 2) if the court in which the criminal case is pending finds that the defendant is a veteran or current member of the United States armed forces, including a member of the reserves, national guard, or state guard; and that the veteran suffers from a brain injury, mental illness, or mental disorder, including post-traumatic stress disorder, that resulted from the defendant’s military service in a combat zone or other similar hazardous duty area and materially affected the defendant’s criminal conduct at issue in the case.  Finally, the veteran ultimately retains the right to choose whether to proceed through the veterans court program or to just go through the regular criminal justice system.

Once the veteran qualifies and agrees to participate, the veteran participates in a special pretrial program.  The prosecutor and the criminal defense attorney are supposed to work together in a “non-adversarial” fashion to create an “individualized treatment plan” for the veteran. 

The individualized treatment plan lasts from a minimum of six months up to the maximum length of probation for whatever offense was charged.  The veteran can choose to withdraw from the program at any time, but then the veteran loses the benefits which would have been gained by successfully completing the pretrial intervention program. 

What are those benefits?  Well, the most important one is that any charges against the veteran would be dismissed.  That’s pretty big.  Also, the veteran is then entitled to go back and have the offense expunged from his criminal history!  That’s a huge one.

The law states that the cost to the veteran for participating in the program can be no more than $1,000; plus the cost of testing, counseling, and treatment fees in whatever amount is necessary to cover the costs of any such testing, counseling, or treatment provided under the program.

It’s also important to note that the veterans court is required by law to take steps to ensure “maximum participation of eligible defendants.”  Not only are our Bell County courts not ensuring maximum participation, they are not even ensuring any participation.  The courts can only ensure participation, though, after the county commissioners court authorizes the program.  Something our county commissioners court has yet to do!

Tarrant County is already going to be the first county to implement this type of program.  That distinction should have been ours.  If we are going to make this county a “great place” for our veterans, we need to implement this program as soon as possible.

The latest report by PCS in entitled One in 31: The Long Reach of American Corrections.  The One in 31 refers to the fact that 1 out of every 31 adults in the United States is either in prison, on parole, or on probation.  That’s 7.3 million people! 

The report also discusses how less than one-third of those 7.3 million people are behind bars; but that in spite of this, the states spend nearly 90 percent of their corrections budget on prisons.  It’s certainly an interesting read whether you agree with the conclusions or not.

Of most interest, though, is the information on this fact-sheet about Texas.  It should be called One in 22: The Long Reach of Texas Corrections.  Can you believe it?  One out of every 22 Texans is being actively watched and monitored by the government.  Big Brother is a Texan, apparently.  Who knew?  Astonishingly, though, Texas is only the fourth most controlling state in the Union.  We are behind Georgia, Idaho, and Washington, D.C.

Another interesting facts in the report is that in 2008 Texas spent $2.96 billion dollars on corrections, or 6.8 percent of the general fund.  Here is a chart that breaks down the percentages:

Note that the father entered a no-contest plea “after learning his court-appointed attorney had not prepared a defense.”  This got him “two life terms in prison plus 14 years.”

Best of all, he was “denied parole five times because he refused to admit guilt and enter a sex-offender treatment program.”  Of course.

In the criminal law specialization category, there were only 48 examinees who sat for the certification test this past October. Of those, exactly 50% passed the exam (24 new inductees). A minimum passing score was 350 points out of a possible 400. As of last year, there were only 841 out of the state’s approximately 80,000 attorneys who were Board Certified in Criminal Law, or approximately one percent.  Therefore, so long as no one lost their certification, there are now 865 Board Certified Criminal Law attorneys in Texas.

The induction ceremony took place this past Thursday, February 5, 2009.  The ceremony was at the Texas Law Center in Austin, and it was presided over by Wallace B. Jefferson, Chief Justice of The Texas Supreme Court. Also in attendance were other members of the Texas Supreme Court, the Court of Criminal Appeals, and the Third Court of Appeals in Austin. When Chief Justice Jefferson inadvertently introduced Lawrence E. Meyers as a Justice on the Texas Court of Criminal Appeals, Judge Meyers responded by reminding the Chief Justice that “there is no justice on the Court of Criminal Appeals, only judges.”

Among the twenty-four newly certified criminal law attorneys, eight (or one-third of the total) identify themselves as prosecutors. This year’s class includes assistant district attorneys from the following counties: Anderson, Brazoria, Hays, Tarrant (three prosecutors), Wichita, and Williamson.

There was one Justice from the First District Court of Appeals in Houston, Justice Elsa Alcala. There was also one judge, the Honorable Jeremy Warren, Judge of Brazoria County Court at Law Number Three.

While the remaining fourteen appear to be defense attorneys, only eight of them are members of TCDLA. The other six may be defense attorneys, but I have yet to confirm this.

Also, in case you were curious like I was, here is some interesting trivia concerning this new class of certified criminal law attorneys: The average years of experience is 11, the median is 9. The person with the least amount of experience had only five years (the minimum for certification). The most experienced inductee had 25 years of experience.

Baylor University (my alma mater), Texas Tech, and Texas Wesleyan law schools each had three graduates certified in criminal law this year. South Texas, SMU, St. Mary’s, and UT each had two apiece. The following law schools had one each: Louisiana State, Regent University, Texas Southern, Tulane, University Of Houston, University Of Wyoming, and Valparaiso University.

The following chart summarizes the geographical locations of each new inductee:

According to the Texas Board of Legal Specialization, an attorney who is Board Certified in Criminal Law must have "experience in the preparation and trial of serious criminal matters.  The attorney must also have extensive knowledge of state and federal constitutional law, evidence, procedure and penal laws involved in the trial of these matters."

The qualifications for an attorney to become board certified are:

1. The attorney must have been licensed to practice law for at least five years;
2. The attorney must devote a required percentage of his or her practice to criminal law for at least the last three years;
3. The attorney must have handled a wide variety of criminal law matters which demonstrate his or her experience and involvement in criminal law;
4. The attorney must have attended criminal law continuing education seminars regularly to keep his or her legal training up to date;
5. The attorney must have been successfully evaluated by fellow lawyers and judges; and, most difficult of all,
6. The attorney must have passed a written examination demonstrating a thorough understanding of criminal law and procedure.

I am proud to announce that I have met each and every one of those qualifications, and I can now officially claim to be what I have long desired to be, a criminal law specialist in the State of Texas.  This has been a goal of mine ever since I took an interest in criminal law over twelve years ago while in law school.

I have long felt that if I was going to accept the responsibility of protecting the rights of my fellow citizens who have come to feel the power and force of their own government turning against them, then I must dedicate myself to learning everything that I can about the laws, rules and procedures which the government is going to use against my clients.  It is only by knowing the rules better than even the rule-makers themselves that I can truly protect those individuals who have put their trust in me to see them through a most difficult time.

The 2009 Induction Ceremony honoring all of the 2008 Newly Board Certified Attorneys will take place on Thursday, February 5, 2009 at 3:00 p.m., at the Texas Law Center in Austin, Texas.  At that time, members of the Supreme Court of Texas will preside over the presentation of Certificates of Special Competence which will be given to each of the new inductees.

Not once in the article, though, did it mention that Judge Duffield inquired as to an accused’s financial situation and whether or not that defendant could make any particular bail amount. No, on the contrary, he apparently continues to set bail amounts according to the usual preset bail schedule without any regard to his legal duty to see that a bail is not oppressively high and without any regard to the ability of the accused to make bail.

County Commission Richard Cortese said the public does not care about bail amounts. He claims that “defense attorneys and family members of the person arrested are the people who usually get upset and complain about high bail amounts.” He then continues by stating that the victims of crime generally believe bail amounts are too low. “They want the person who broke into their house to stay behind bars,” he said. Wow! An elected official that has never heard of the presumption of innocence. Innocent until proven guilty? Not in Bell County! Are there any constitutional rights that can survive in Bell County?

Setting bail in Bell County is a precise procedure, the only problem is that it is precisely wrong.

That is absolute, 100%, correct.  However, the very next paragraph goes on to say “Attorney John Galligan said it is common for bail hearings to reduce bail amounts by 80 to 90 percent.”  That I don’t know about.

Sure, the typical felony defendant’s bail gets reduced from an ungodly number down to $1,000 once they plead guilty.  But, that’s usually the only way to get such a huge reduction.  Otherwise, the judges usually reduce the bail from an ungodly amount down to just an unholy amount.  What good does that do?

Here’s the problem, though: a good number of defendants post bond before they get a bail reduction.  Then, they are paying their bond companies huge sums of money to get out of jail.  That typically means that there is no money left to hire a criminal defense attorney.  So, since they are charged with felonies, what happens?  They get a court-appointed lawyer.  Who pays for that?  We, the taxpayers. 

So, by setting initial bail amounts so high, a defendant has to pay what little money they have saved up over time, or what little money their families can scrape together, to get that person out of the jail.

The situation is better if the defendant hires a criminal defense lawyer first, because then the lawyer can go to the judge assigned to the case and get the bail lowered to a more reasonable amount.  That only happens, though, when the defendant hires the lawyer first.  Meanwhile, though, that person sits in jail and waits until the defense attorney can go to a judge and get a lowered bail amount (unless they have so much money that they can afford to hire a lawyer and hire a bondsman — and not very many people do).

So, why are we forcing people to stay in jail longer than necessary with these artificially high bail bonds?  Why not just set a reasonable bail amount to begin with and save everyone (including the taxpayers) a lot of money?  Well, according to the article, Judge Ted Duffield was at a conference and unavailable for comment.  Where was “Million Dollar” Judge Ivey for comment?

Thompson’s bail was set at one million dollars due to “peripheral issues,” according to the article. Judge G. W. Ivey apparently recommended a million dollar bail at the request of a detective with the Belton Police Department “who believed Thompson was not cooperating with the investigation.”

Judge Ted Duffield, who officially set the bail, said that he thought that the amount “seemed high for a criminal mischief charge” and briefly considered reducing the million dollar bail when Thompson appeared before him. Duffield did not reduce the bail, though, but instead deferred to the bail amount recommended by Judge Ivey.

Further, the article reported, the Belton Police Department consulted with the Bell County District Attorney’s office, who agreed with a “high bail amount” so as to “send a clear message to the young people involved with the case that it was a serious felony.”

Thus, it appears that Bell County officials involved believed that Thompson should be held in the overcrowded Bell County Jail because he refused to cooperate with the police and because the prosecutors wanted to send a clear message to other young people about the seriousness of the alleged offense. These factors must be based upon “Bell County law,” though.

The problem with Bell County law is that it conflicts squarely with Texas and federal laws. Texas law sets out the rules to follow when a court official sets the amount of bail in a criminal case. The law states that: 1) the bail should be high enough to reasonably assure that the person will show up for court, 2) the bail should not be oppressively high, 3) the nature of the offense and the circumstances under which it was committed are to be considered, 4) the ability of the accused to make bail must be considered, and 5) the future safety of a victim of the offense and the community must be considered, as well. This law is found in Article 17.15 of the Texas Code of Criminal Procedure.

What is missing from the five factors? Certainly cooperating with the police isn’t there. Since when have we as a society ever required anyone arrested with a crime to cooperate with government agents, anyway? Has the Belton Police Department ever heard of the United States and Texas Constitutions? Perhaps the right to remain silent doesn’t apply in Bell County. What about sending clear messages to young people? That’s not one of the five factors, either.

Looking at what the law does allow, though, we can see what a poor job our elected local officials did in following Texas law: First, a million dollar bail would almost certainly guarantee any 17-year-old kid would show up for court. However, wouldn’t a $20,000 bail do the same thing? Apparently the 426th District Court thought so, at least according to the article, because that was the amount of bail once Thompson had the benefit of a criminal defense attorney to assert his rights. Secondly, does anyone think that a million dollar bail would not almost always be oppressive to a 17-year-old, or just about anyone else for that matter? Thirdly, the nature of the offense is that a seven-year-old vehicle was apparently stolen and driven into a lake after an unsupervised teen party. While the owner of the vehicle did not deserve to have his car stolen, should he really be surprised something bad happened after leaving his teenager home alone over the weekend? Fourthly, I wonder what inquiry Judges Ivey and Duffield made into Thompson’s ability to come up with a million dollars? Maybe Thompson had saved up a million dollars working a part-time fast-food job when not attending high school. Who knows? Finally, the future safety of a victim of the offense and the community. Can anyone explain how the safety of the community or the safety of the M.I.A. father would be at risk if Thompson had been released under a reasonable bail?

Perhaps Thompson is not alone, though. Perhaps Bell County is overrun with crime and criminals and we are all at danger except for the heroic efforts of a few unappreciated and little understood court officials. Looking at the Bell County Jail population on Sunday, September 21, 2008, one could see that there were nine inmates with million dollar or higher bails set. Of course, all but two of those were in jail at the time for murder. With one of the remaining two charged with aggravated assault with a deadly weapon, and the other one charged with having escaped from a jail previously. Naturally, one can see how a 17-year-old alleged car thief deserves the same bail as a bunch of murderers. Although, not every alleged murderer has a million dollar bail. In fact, on Sunday, a couple of alleged murderers had bail amounts set at just $100,000.

Perhaps, then, it is the nature of Thompson’s alleged crime that makes it especially heinous. Maybe driving a 2001 Chevy Camaro Z-28 into a lake just can not be tolerated in Bell County. That is why the four individuals sitting in the Bell County jail on Sunday morning who were charged in other incidents of felony criminal mischief should be thankful that their bail amounts were set at $10,000; $15,000;$20,000 and $50,000 each. One can only assume that those four individuals, however, must be cooperating fully with the police, and the young people of Bell County must have already received clear messages concerning those cases.

For comparison purposes, though, there were eight persons in the Bell County Jail on this past Sunday who were each charged with aggravated sexual assault on children. Surely that is also a serious crime where the prosecutors would want to send clear messages by requesting high bail amounts, right? And certainly in that type of case we would want a high bail set unless those accused of having engaged in sexual contact with children came forward and were totally cooperative with the compassionate and understanding police forces of our county, right? Well, apparently not, because only one of the eight even has a half a million dollar bail, and the rest have an average bail of around $200,000 (with one set at only $75,000).

Do not mistake the point I am trying to make, though. I am not making a blanket statement that Bell County bail amounts are not high enough in sexual assault cases, or murder cases, or any particular case. Maybe bail amounts are too high or too low, and maybe they aren’t. I don’t know. It is certainly possible that the magistrates in other cases followed Texas law, and that court officials determined that $75,000 was enough money to ensure that that the particular alleged child molester in that case would show up for court and not endanger anyone’s safety when released. The point I am trying to make, though, is that it is a shame that John Thompson didn’t receive the same consideration in the setting of his bail amount as others apparently have.

Both The United States Constitution and the Texas Constitution provide every citizen with the right to a reasonable bail. Both Constitutions also guarantee all citizens the right to equal protection of the law. FBI Director Robert Mueller has said that “When just one of us loses just one of our rights, then the freedoms of all of us are diminished.” The Federal Bureau of Investigation is the lead agency for investigating violations of federal civil rights laws. The Texas Rangers investigate violations of Texas law when local officials are unwilling or unable to do so. Maybe it’s time for one of those agencies to start asking Bell County officials, “Setting bail: Why do the amounts vary so much”?

‘It’s political silly season, and this fits’
By Justin Cox
Killeen Daily Herald

Convicted Killeen man’s victim dies; murder charge possible
Posted on: Wednesday, December 12, 2007, 12:00 AM
By Justin Cox
http://www.kdhnews.com/news/story.aspx?s=21185

http://www.temple-telegram.com/story/2007/09/26/43826

Man guilty of nursing home assault
Posted on: Wednesday, September 26, 2007, 12:00 AM
By Justin Cox
http://www.kdhnews.com/news/story.aspx?s=19034