As expected, new Harris County District Attorney Mike Anderson has reversed former DA Pat Lykos’ common sense “trace case” policy with his own – er, I mean, with the “judgment” of the police officer on the scene:
From: Bill Moore
Sent: Wed 1/23/2013 2:03 PM
To: All DA EmployeesNews from the front:
A charge against an individual for possession of a residue or trace amount of a Penalty Group 1 or penalty Group 2 controlled substance will be accepted at Intake and filed as a state jail felony if the residue or trace amount is visible and testable.
This includes visible and testable residue present on crack pipes, Brillo pads, syringes, baggies, mirrors, straws, razor blades, etc. During an Intake screening call with the arresting officer, an emphasis should be placed on the officer’s description of the residue. You will need to determine based upon the officer’s description whether or not a sufficient amount of controlled substance remains to be tested.
Thanks for your attention,
Bill Moore
Intake Division Chief
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
713-755-6101
So, if po-po on the scene says, “looks like crack to me”, then, hell yeah, accept the charge! Enough to retest? Who cares? It’s just someone’s life at stake! And we all know that the awesome Houston Police Department Crime Lab never makes mistakes, so retest, schmetest, arrest that thug!
If HPD comes back and says “Yeah, that miniscule amount of substance you sent us was actually drugs… but no, it can’t be retested because it was entirely destroyed in the course of our conducting our highly-reliable test,” the DAO will prosecute you for a state jail felony!
I don’t know about you, but I sure do feel safer! Who needs a District Attorney that urges caution before ruining people’s lives? I’m a Republican and by gawd, we got to have people put away regardless of innocence!
Now, I might, just might, think differently if my skin color wasn’t white and I didn’t live way out in the ‘burbs. Good luck to those folks that aren’t white and don’t live in the ‘burbs.
What is behind this? Do you know? It seems like an odd position to take.
I disagree with you David. When we field test “crack pipes, Brillo pads, syringes, baggies, mirrors, straws, razor blades, etc” we use specific test kits for that type of illegal drug; we also submit the swaps/samples and must document everything we do with chain of custody forms and then everything is sealed – it’s not just writing a ticket.
Some people would say it is far easier NOT to spend hours writing reports and processing the evidence, or having the Medical Examiner’s Office double check and analysis everything we do on the scene, and not prosecute for a petty little residue case… that is until you’re the person robbed or your home is burgled then finding your family heirlooms were stolen and traded for a crack rock. You may feel different if it is your vehicle that is damaged and you can’t file a claim on your insurance; wait until you lose your home computer with all your family’s records and photos stored on it; wait until you shell out thousands of dollars to replace an air conditioner compressor unit for you home because it was stolen for a few dollars of cooper; wait until your business has to increase their costs to cover for the loses – just because of the damaged caused by these turds – just because THEY decided their few minutes of being high is more important than your lifetime of hard work earning what you’ve got. …Not to mention the everlasting feeling of vulnerability the victim has with their own personal safety. I say “a trace is a case” and then bury the crooks under the jail, that is the only rehab that is certain.
More business for the defense attorneys.
Saw Mike Anderson on the Red and Blue Show the other day. He looked nervous….like he was on drugs.
David,
If Mike plans to use the prosecution as levarage on the defendent to plead to a lesser misdemeanor contingent on going to court ordered drug treatment….then I am all for it.
Simple
Simple,
Still looking for that one officer who successfully used a crack pipe charge for leverage. I know he is out there in the non-anonymous world with a real case and name.
Mr. McCool,
All of the negative consequences of drug-related crimes you detail absolutely suck. I don’t wish them on anyone, and would feel as enraged and violated as you describe, if they happened to me or my loved ones.
You know what else sucks? Tyrannical government.
And the ability of armed agents of my government to arrest, detain, charge, prosecute, fine and incarcerate people–without there even being a possibility of their challenging the evidence and proving their innocence–is a form of government tyranny.
This isn’t about whether the War on Drugs is right or wrong, smart or stupid, successful or a failure.
It isn’t about whether the people typically arrested for and charged with this crime are contributing members of society or dangerous thugs who just happen to be taking a break in between committing actual criminal acts.
The policy under Lykos was to simply require enough drugs be present so that after the government testing (in the field and/or lab), there was enough left over for another test, to confirm the result.
That’s 1/100th of a gram. Under Lykos, if you were caught with 1/100th of a gram, you were charged.
Try taking a packet of sugar (1 gram) and splitting it into 100 equal parts. Take you time–I’ll wait.
Now look at your 100 equal parts of that sugar packet.
Is it really too much to ask that only 1 of those 100 be found on a person before the government brings its full might down on a free citizen’s head?
Is it so unreasonable for people to expect that–should the government ever seek to deprive them of their liberty–there should be some way to try and prove your innocence?
Aren’t we as Republicans and conservatives supposed to be suspicious of government and seek to limit its thirst for authority?
Don’t residents of Houston and Harris County have specific and particular reason to be concerned about the reliability of forensic testing and the integrity of some elements in our criminal justice system?
Is there not a single crooked cop in all of Harris County? Have the problems with HPD’s Crime Lab been fully rectified and forever resolved?
Does anyone believe that?
It simply boggles my mind how some of my fellow conservatives and Republicans can understand (as I do) the vital importance of the Second Amendment in preserving our liberty… but are blase about the government’s encroachment upon their Fourth and Fifth Amendment protections.
My AR-15 is the means I will use–if forced to–to protect my life and liberty both in my home and in the streets.
My due process rights–including a presumption of innocence and the ability to independently examine and contest the evidence being presented against me–are some of the most critical “legal ‘assault rifles'” we get to use in a court of law.
With this change in policy, Mike Anderson has taken that away from all of us. If a cop says you are in “possession” of even a “residue” amount of drugs (whatever that even means), you literally have no way of demonstrating that you are not.
1/100th of a sugar packet.
Try it.
Take a look at what 1/100th of a sugar packet looks like.
Is it really possible we can’t keep the thugs off the streets if the bar is set as “high” as 1/100th of a gram?
But Whadda’ I Know?
Mike Anderson promised he would follow the law and change former DA Lykos liberal policy, so he is just fulfilling a campaign promise. It is the law and if people don’t like the law they should take their concerns to the state legislature. That’s how the system works. Lykos was wrong and she is out.
I’ll bite, Randy. Where in the Texas code is “Hang ’em high Mike”‘s policy supported?
Big Jolly–I’ll see our challenge to Randy and raise you a penny.
State jail felony for STEALING a penny in Texas, that is.
Quoting from a commenter a while back on Murray Newman’s blog
————————————
According to the TDCAA’s top lobbyist, in an effort to win the War on Copper Theft, the Texas state legislature managed to make the theft of a single penny (coin) a state jail felony.
http://gritsforbreakfast.blogspot.com/2011/08/in-for-penny-in-for-state-jail-felony.html
According to the U.S. Mint, even modern day pennies are 2.5{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} copper. Certainly enough to constitute a “trace” amount.
So I’m curious… if elected DA, would Mike Anderson prosecute penny-thieves to the full extent of the law? Or would he use his prosecutorial discretion to focus limited taxpayer resources on other priorities?
And please don’t bother arguing about “legislative intent” or some such crap. Mike has repeatedly claimed in multiple public forums that the LAW is the LAW and you follow it AS WRITTEN and it isn’t a prosecutor’s job to decide which laws to prosecute and which laws to ignore.
So until the legislature (possible) amends the law and addresses this, would a DA Anderson pursue these charges?
http://harriscountycriminaljustice.blogspot.com/2012/05/guest-post-lykos-and-judicial-activism.html?showComment=1337642938891#c2335862269426494337
————————————
Now that Anderson is DA and has gone ahead and changed the trace-case policy, I’d be curious to know if he is going to be filing felony charges on penny thieves too–at least until the legislature changes the statute (if they decided to).
The law is the law.
But Whadda’ I Know?
David, first of all, the officer is not ruining the addicts lives. The addicts decision to use drugs is the problem. When the DA doesn’t take the charge, it prevents the addict from getting help. In addition, it prevents the addict from revealing the drug source, the pusher. These are the bad guys that the DA needs to arrest. Their arrest will reduce the number of drug dealers who push drugs on our children. Under Lykos trace evidence policy about 700 fewer drug dealer charges were filed.
What are you David, some kind of librul? Of course the only solution to drug addiction is to incarcerate as many people as possible. It may cost us some money, but at least when they’re in prison they don’t have access dangerous drugs. If we have to poke a few holes in the 4th amendment along the way, well, the end is worth the means. The war on drugs must be won! The law is the law. If it wasn’t right, it wouldn’t be the law.
To: But Whadda’ I Know?
Having arrested more than a thousand violators for some infraction of the law higher than a traffic ticket, I think I have an understanding of the process. Yes, a trace amount (even 1/100th of a gram) is enough to file a charge, that is what the law states. Evidence is processed and submitted in accordance with established procedures. If you don’t like the law, change it – don’t break it.
Many conservatives say we don’t like our Judges legislating from the bench, well, I don’t like weak Prosecutors who are completely comfortable with circumventing the law either. Go to another county and see if a trace amount won’t get you charged. These are statutory guidelines via state laws, not county laws subjective to whoever is elected.
Side note: I occasionally teach a Meth awareness course; I suggest you watch “Montana Meth Project” videos, see what I see weekly.