In Gonzales v. State, ___ S.W.3d ___, 2010 WL 4229114, (Tex.App.—San Antonio Oct 27, 2010) (NO.04-09-0811-CR), the Fourth Court of Appeals in Texas upheld the conviction of a man found guilty of driving while intoxicated, even though the defendant fled the scene of a single-car collision and got home at least thirty minutes prior to the police arriving at his home where he claimed to have become intoxicated by drinking three glasses of wine.
Reviewing the case to determine whether the evidence was legally sufficient under Jackson v. Virginia, 443 U.S. 307 (1979), the court considered the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
The court first noted that evidence of intoxication near the time of driving was probative evidence that the defendant had been intoxicated at the time of driving. The defendant admitted that he arrived home about thirty minutes before the officers arrived, and the officers testified the defendant was intoxicated when they found him there Furthermore, the court found there was circumstantial evidence of the defendant’s intoxication at the time of the collision, specifically his involvement in a single-car collision, the lack of skid marks prior to impact, and the defendant’s flight from the scene while driving nearly seven miles on a tire rim with a shredded tire.
As to the defendant’s claim that he became intoxicated after arriving at his home, the court found the jury, as the sole arbiter of credibility, was free to consider or disregard the defendant’s testimony that his consumption of three glasses of wine after arriving at his home was the cause of his intoxication. The court concluded that while each circumstance alone might not support a finding of legal sufficiency, “the cumulative force of the incriminating circumstances” was sufficient to support the conviction.
Every year the Office of Court Administration publishes the Annual Report for the Texas Judiciary. The Report provides information regarding judges, court caseloads, and funding for the judiciary. The report for 2010 covers the fiscal year, beginning September 1, 2009 and ending August 31, 2010.
Overall, less than two percent of all criminal cases went to trial in 2010. However, trial rates were much higher for capital murder and murder cases, which went to trial in 21.3% of the cases and 18.2% of cases, respectively.
Seventy five percent of the cases that went to trial, were tried before to juries. Overall, defendants were convicted in 76.4% of cases that went to trial before a jury.
Other interesting tidbits from the report include:
- Felony assault or attempted murder cases increased 113 percent.
- Felony and misdemeanor drug offense cases increased 153 percent.
- Other felonies increased 115 percent.
- The highest conviction rate for felonies was for felony DWI cases, at 84.8 percent.
The complete Annual Report for the Texas Judiciary for Fiscal Year 2010 can be found here: http://www.courts.state.tx.us/pubs/AR2010/AR10.pdf
The doctrine of implied bias was first mentioned by the United States Supreme Court in a concurring opinion in Smith v. Phillips, 455 U.S. 209, (1982). The Sixth Amendment provides citizens accused with the right to an impartial jury. Justice O’Connor, in her concurring opinion suggested that jurors who are actual employees of the prosecuting agency, close relatives of a participant to the trial or the offense, or witnesses to the offense might have an implied bias that would prevent them from being impartial jurors.
However, neither the Supreme Court nor the Court of Criminal Appeals in Texas have adopted the implied bias doctrine. Instead, where there have been allegations of juror partiality, courts have held the remedy is a hearing to determine whether the juror had any actual bias.
On November 17, 2010, the Court of Criminal Appeals rejected the implied bias doctrine in Texas in Uranga v. State. In Uranga, a juror in felony possession of methamphetamine case was watching a video of the defendant evading the police when the juror realized the yard the defendant drove through to evade the police was the defendant’s own yard. The trial court questioned the juror outside the presence of the jury. The juror stated the fact that the defendant had driven through the juror’s yard would not affect the juror’s decision in the case.
On appeal, the appellant claimed that he was denied his right to an impartial jury because the juror in question was allowed to remain on the jury. The Court of Criminal Appeals rejected the appellant’s claim that bias could be implied. The Court noted that the proper procedure was to question the juror to determine if there was an actual bias, and rejected the theory that bias must be implied to jurors.
A good letter of recommendation is one that shows the reader that the recommender knows you personally, is familiar with your work, and lists specific reasons why you are a suitable candidate for the position or award for which you are applying. As the requester of a letter of recommendation, your job is to make the letter-writing process as effortless as possible. The following ten tips will help ensure you receive the best possible letter of recommendation:
- Be sure to select someone knows you well and is familiar with your work.
- Ask the potential recommender if they are willing, and have time, to complete a letter of recommendation for you. Understand that your potential recommender is busy, so be sure to approach the potential recommender as early as possible.
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Professor Jim McElhaney, in his latest ABA Journal article, offers a great tip for young litigators: instead of writing out the questions you want to ask a witness, write down the general answers you are looking for. This will keep you from reading your questions, allowing you to frame more natural sounding questions during your examination of the witness. For more great trial tips, read the complete article here.
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On Monday, Texas Lawyer released the results of surveys it conducted of over 1,100 Texas law students in the Spring 2008 semester. The results were as follows:
Top Marks by Category:
Career Services Office: Southern Methodist University
Students Felt Prepared to Practice on Graduation: Baylor University
Collegiality: University of Houston
Technology: Southern Methodist University
Teaching Quality: Southern Methodist University
Library Services: Texas Wesleyan
Faculty Accessibility: Texas Tech School of Law
Student Diversity: Texas Southern University Thurgood Marshall School of Law
Click for full-size image
Most Influential Professors:
SMU – Gregory S. Crespi
Texas Wesleyan – Aric K. Short
Texas Tech – Gerry W. Beyer
University of Houston – John Mixon
South Texas – Geoffrey S. Corn
Baylor University – Larry Bates
St. Mary’s – John W. Teeter Jr.
Texas Southern – Fernando Colon-Navarro and April Walker
Overall Rankings:
1. Southern Methodist University Dedman School of Law (103 students responding)
2. Texas Wesleyan University School of Law (72 students responding)
3. Texas Tech University School of Law (164 students responding)
4. University of Texas School of Law (246 students responding)
5. University of Houston Law Center (153 students responding)
6. South Texas College of Law (126 students responding)
7. Baylor University School of Law (113 students responding)
8. St. Mary’s University School of Law (76 students responding)
9. Texas Southern University Thurgood Marshall School of Law (79 students responding)
Check out the complete story and the law school deans’ responses at Texas Lawyer.
Today, in a 7-2 decision, the Supreme Court held that lethal injections do not violate the Constitution
. Writing for the plurality in Baze v. Rees, Chief Justice Roberts stated merely “showing a slightly or marginally safe alternative” was not enough to successfully challenge the method of execution. Instead, there must be proof that the alternate method prevents a “substantial risk of serious harm”
As Justice Stevens pointed out, the issue before the Court was not whether the death penalty itself was unconstitutional, rather only whether the sodium thiopental injection used by Kentucky was unconstitutional or not.
Held: The lethal injection method used by Kentucky did not violate the Constitution.
Plurality Opinion: Roberts, joined by Alito, and Kennedy. Joining in the result: Stevens, Scalia, Thomas, and Breyer
Dissent: Ginsberg and Souter.
More information about the case can be found here.
In response to my survey of starting salaries for entry level positions at district attorney’s offices around Texas, one of my readers wrote in asking whether it was worth going through three years of law school to become a prosecutor. I’m posting my answer here so that others can add their thoughts and comments on the subject.
First off, congratulations on getting into law school. You are in for the ride of your life!
To answer your question on whether it’s worth becoming a prosecutor, my answer is that it depends on what you are looking for.
Why become a prosecutor?
1. Experience - As a prosecutor, you will gain valuable experience from day one, that you Big Law colleagues will not get for a number of years. While they are stuck doing doc reviews, you will be trying cases. Regardless of whether you decide to remain a prosecutor or not, having a few years of trial experience under your belt will be a great asset.
2. Money - Sure, I just got done saying you’ll only make a fraction of what your big-firm classmates will be making, but the money will work itself out. There is a loan forgiveness program in place that will forgive your outstanding loan in ten years if you are doing public service work. Fortunately, public service work is defined liberally and does include prosecuting. Some prosecutors become defense attorneys later in their careers. With great contacts and extensive trial experience, they attract wealthy clientele. I know a number of Big Law attorneys who started off as prosecutors.
3. Work-Life Balance - This is a real hot topic among lawyers right now. Big firm pay means big firm billables. 2,100 hours in billables sound like a lot? Just wait till you discover how many hours young associates work (www.abanet.org/careercounsel/billable/toolkit/bhcomplete.pdf) in order to bill one hour. While a prosecutor puts in long hours, the hours are considerably fewer than that of most associates at large law firms. They also get national holidays off, great benefits, and for most, sick time and vacation time that accrues each year, so you can save up a couple of years worth (or a career’s worth) and then take one fantastically-long, paid-vacation!
4. Intrinsic Value – There is a great sense of satisfaction in being a representative of the people, and walking into court and saying that you are “present and ready on behalf of the State, your honor.” Prosecutors are an integral part of the community and the legal system. There are few jobs that can compare to the satisfaction that being a prosecutor can bring.
Your friends who claim that becoming a prosecutor isn’t worth it may have their hearts in the right place, but they are overlooking the fact that prosecutors aren’t in it for the money. It’s a calling. It’s also important to remember that while some of your peers will graduate making upwards of $120,000, many more won’t.
I would suggest spending at least one half of a summer working for a district attorney’s office to see if you like it. Your school will also be able to tell you if they have externships with state or federal prosecutors, or if they have a criminal prosecution clinic. I would also suggest taking part in mock trial or moot court competitions at your school and trying out for the state or national teams.
Good luck!
Update: For more information on loan forgiveness, check out my post on the CCRAA.
Early last week, I wrote a post about the CCRAA loan forgiveness program in which I noted that it was still unclear whether loan forgiveness under the CCRAA would trigger tax liability. Paul Caron of the TaxProf Blog reported on Friday that the IRS handed down Rev. Rul. 2008-34 “which clarifies that law school public interest loan forgiveness programs qualify for the § 108(f) exception (and, as a result, students need not report the forgiven interest as discharge of indebtedness income). ” The ruling applies to loans made through the Loan Repayment Assistance Program (LRAP) under which loans, administered directly by law schools, are offered to students pursuing careers in public service. LRAP loans have provisions similar to loans consolidated under the CCRAA including a loan forgiveness provision. While Rev. Rul. 2008-34 does not specifically address loans made under the CCRAA, it is an indication that the IRS is likely to find that CCRAA loan forgiveness provision will also fall under the 108(f) exception and the forgiveness will not trigger tax liability.
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Today in a 5-4 decision, the Supreme Court struck down the ban on handguns in the District of Columbia. At issue in District of Columbia v. Heller was whether the Second Amendment protected the right of individuals to bear arms, or whether it applied only to the collective rights of states to maintain militias.
In the majority opinion written by Justice Scalia, the Court held that the individual right to possess a firearm is unrelated to service in a militia, and instead, was a right to bear arms for “traditionally lawful purposes, such as self-defense within the home.” In reaching its decision, the Court examined the language used in the Second Amendment, which provides: “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The majority noted that the operative clause used in the Second Amendment was the “right of the people to keep and bear [a]rms.” The Court determined the phrase “right of the people” referred to an individual right rather than a collective right. In dissecting the phrase “keep and bear arms,” the Court found “arms” traditionally referred to “weapons that were not specifically designed for military use and were not employed in a military capacity.” The majority also determined that the most natural meaning of the phrase “keep arms” was “have weapons.” The Court went on to note that every time the phrase “keep arms” was used in the founding era, the phrase referred to an individual right unconnected with militia service. Having addressed the operative clause, the Court went on to address the prefatory clause “[a] well regulated [m]ilitia being necessary to the security of a free [s]tate…” The majority found that the phrase “well-regulated militia” referred to every man who was physically capable of bearing arms. The majority also pointed out that “a militia” was distinguishable from the phrase “organized militia,” and that the phrase “well-regulated” meant only “the imposition of proper discipline and training.” The majority went on to note that the “security of a free state” referred to the “security of the polity” rather than the security of each of the several states. Having addressed each phrase in the pertinent portion of the Second Amendment, the majority concluded that the Second Amendment created an individual right to keep and bear arms.
Majority: Scalia, Roberts, Kennedy, Thomas, Alito
Dissent: Stevens, Souter, Ginsburg, Breyer
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One factor that is often considered in determining a law school’s ranking is the number of scholarly articles published per year by the school’s faculty. Since larger schools have an advantage in this regard, a more equitable measure of publication rates is a comparison based on the number of papers published per full-time faculty member. This offers a better measure of how often professors are being published. For example, under the traditional measure the University of Texas would come out ahead in terms of the number of papers published, whereas University of Houston professors actually publish papers more frequently on a per capita basis.
Although the publication rate per professor is a useful tool to compare one aspect of a law school’s ranking, the measure is subject to a number of limitations. First, it does not take into account how many times the published articles were cited, a measure that focuses more on the quality of articles written rather than the quantity. Second, the publication rates per professor measure do not reflect how many professors were actually published in a given time frame. Professors who publish a large number of articles increase the overall publication rate for the whole school. For example over the last year, Antonio Gidi of University of Houston published ten articles and Bernard Black at the University of Texas published fourteen articles.
The findings are subject to the limitations of the source data. The data for the number of papers published comes from the Social Science Research Network. While the SSRN has a majority of the scholarly works published, SSRN only publishes those articles made available by the authors for publication through SSRN. SSRN data also reflects the year in which the article was first made available through SSRN, not the year which the paper was first published. For the sake of consistency, the numbers used in the full-time faculty column were based on the numbers most recently published by the ABA through lsac.org.
One final note, while the publication rates are often referred to and are commonly used as one measure in deriving law school rankings, it is important to note that at least one in depth study concluded that there is little correlation between publication or citation rates and effective teaching.
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A master wordsmith, Justice Antonin Scalia is without a doubt the most colorful writer on the Supreme Court. Examples of his most famous lines include:
The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that, when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was done. I sometimes think that is an appropriate analogy to this Court’s constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. County of Riverside v. McLaughlin, 500 U.S. 44, 59-60 (1991).
Today’s extension of the Edwards prohibition is the latest stage of prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.
Minnick v. Mississippi, 498 U.S. 146, 166 (1990).
[N]o government official is “tempted” to place restraints on his own freedom of action, which is why Lord Acton did not say “Power tends to purify.” The Court’s temptation is in the quite opposite and more natural direction–towards systematically eliminating checks upon its own power; and it succumbs. Planned Parenthood v. Casey, 505 U.S. 833, 981 (1992).
At a recent Federalist Society event, Justice Scalia was asked which one of his dissents was his favorite. Justice Scalia responded with a quote from Morrison v. Olson. Morrison was the case in which the Court ruled that the Ethics in Government Act did not violate the separation of power doctrine. The Ethics in Government Act empowered the Attorney General to appoint independent counsel to investigate and prosecute government officials. The lone dissenter, Justice Scalia, penned his favorite lines stating,
Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf. Morrison v. Olson, 487 U.S. 654, 699 (1988).
For more of Justice Scalia’s greatest dissents, check out Kevin A. Ring’s book, Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice.
Loading ...A recent SMSB post also featured t-shirts with some of Scalia’s more memorable quotes on them.
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“You come in here with a skull full of mush and you leave thinking like a lawyer.” Professor Kingsfield, The Paper Chase
Professor Kingsfield was right; law school changes the way you read, the way you think, and the way you analyze. Not unlike boot camp, this three-year odyssey is meant to break you and then remake you into something better than you were before. There are a number of things that you can do to ensure you come out on top when all the making and breaking is done:
1. Get advice from 2Ls and 3Ls who are successful in the areas you want to be successful in. There are a number of ways to be successful in law school. You can make the highest grades, become an acclaimed advocate, or become an editor for a law review or law journal. An important key to being successful in law school is getting advice from students who are already successful in the areas you want to be successful in. Every law student wants to make good grades, and high grades, more than anything else, are rewarded upon graduation. Find students who are at the top of their class and find what worked for them, how they managed their time, and how they prepared for their finals. Find students who have had the professors you are taking to get an idea of what to expect and what the professor expects of you. If you want to focus on honing your litigation skills, seek out a mentor who has been on a national mock trial or moot court team. If you want to become an editor on law review or a law journal, focus on improving your writing skills, pay attention to detail, and find someone who already is on a journal to learn about what it is like being on a journal and tips on effectively managing your time.
2. How you do on the final is much more important than how you answer a question in class.
The Socratic Method strikes fear in the hearts of 1Ls across the nation every year, and it is easy to be caught up in just reading for class to make sure you can answer the question when the professor calls on you. However, knowing the minutiae of every case is not what is going to get you the best grades, you need to be able to step back and see the big picture, so don’t sweat it if you get an answer wrong in class, but make sure you understand why you missed it, and focus on preparing for the final.
A retired Assistant United States Attorney sits down with the Art of Manliness blog and shares valuable insight into the life of a federal prosecutor and advice on how to become one.
Here’s an excerpt:
How competitive is it to get a job with the Justice Department?
Highly competitive. Highly, highly competitive. You may send a resume to any USAO and it will be placed in an applicant file. Hopefully, your resume will have that something-special, i.e., bi-lingual, information technology expertise, outstanding trial work-qualifications that will put you high on the list. Openings now are generated primarily by attrition. When a “slot” opens, the U.S. Attorney has the applicant files pulled for review by several staff AUSAs, who begin the resume weeding-out process. Some offices may have 200 applications for one slot, others may have close to 1,000. Whether they winnow it to 10 or 25, several prospects are called in for intensive interviews, usually by several members of senior management. That interview may be the most important “jury trial” of your career. Here’s a caveat: if you don’t have an ego, don’t even try.
Then, perhaps, to three, then one. Every office has a procedure, not necessarily the one I described, but something similar. But this is where personality, prosecutorial experience, and high-level recommendations become the deal-maker or deal breaker.
For the complete article, visit the Art of Manliness.
Equal Justice Works is presenting a number of webinars on the College Cost Reduction and Access Act. The CCRA, which I first blogged about in 2008, provides loan forgiveness for students who enter government positions, including prosecutors and public defenders, as well as public interest lawyers. The seminars provide important information on qualifying loans, loan consolidation, and managing student debt. Sign up for one of the free webinars here.
1. Get back to where you were: From law school outlines to legal briefs, law students and lawyers alike often work on very lengthy documents. For the times when you don’t remember where exactly you left off, the Shift+F5 combination will save you quite a bit of time. Hit both keys at the same time (as with all the combinations mentioned in this article) and Word will automatically place your cursor where you last left off.
2. Switch between text case: Highlight a portion of text and use the Shift+F3 combination to switch between text case. Word will toggle through sentence case, upper case, and lower case.
Firefox was introduced in 2004 as a free open-source replacement for Microsoft’s Internet Explorer. Firefox offered improved security and introduced tabbed browsing, an integrated spell checker, and a download manager. Today, Firefox is the second-most popular browser, with almost twenty percent of the browser market share. The popularity of Firefox continues to grow primarily because of its speed, ease of use, and the availability of free “add-ons” which allow users to add additional features to customize the Firefox browser.
As the amount of scholarly material available on the web increases, so to does the need to an efficient means to find, sort, organize and cite the material. Below are twenty of the best tools available on Firefox that researchers can choose from to build a customized, highly efficient research tool.
Part I: Find What You Are Looking For.
