Vote for Person, Not Party, for Travis JP3. Vote Sylvia Holmes.

Between Sylvia Holmes & Martin Harry – Vote for Holmes for Travis Justice of the Peace, Precinct 3


Sylvia Holmes defeated incumbent JP3 Judge Steeg earlier this year, and for good reason.  Holmes has a more progressive view of being a judge than Judge Steeg, who developed robe-itis.  You can read about the Austin Chronicle’s endorsement of Holmes here:


Martin Harry is running for JP3 as a Republican.  I heard a radio advertisement for him this last week.  He is claiming to be the only ethical candidate for that race, stating that because Holmes has taken attorney contributions for her campaign, she is unethical.


This is pretty funny.  Every lawyer in Texas contributes to judges’ campaigns. 


It is also funny because Martin Harry was disbarred from taking cases in front of the Social Security Administration for refusing to return money after he was overpaid.   


Harry represented social security claimants for more than 17 years.  The Social Security Administration noticed that Harry had been overpaid as their lawyer.  The Social Security Administration requested that Harry return the over-payment. 


Harry had been overpaid for years.  He refused to return the money that should have been going to social security beneficiaries.  The Social Security Administration gave Harry four options: 1) repay the money he did not have a right to keep, 2) provide evidence that he had already repaid it, 3) prove that the Administration was wrong about the over-payment, or 4) be sanctioned with disqualification from representing social security beneficiaries.


Harry failed to do the first three, and he was sanctioned with disqualification from representing people in front of the Social Security Administration.  Martin Harry attempted to fight the disqualification, claiming that it prevented him from making a living.  The Fifth Circuit held that Harry had a sufficient chance to contest the disqualification and upheld the disqualification ---- right before Harry decided to run for JP3.


You can read the Fifth Circuit’s decision here:


Sylvia Holmes has significant experience with small claims and misdemeanors (as an attorney), and has been giving UT students legal advice as the Associate Director of Legal Services for Students at the University of Texas.  She will make a fantastic Justice of the Peace.


Why Party Doesn’t Matter in Judge Races:

If you’re inclined to vote straight-ticket Republican, hear me out.  Party identification has no real correlation to a judge’s behavior while on the bench. 


It was a Republican JP in McLennan County that set identical $1 million bonds for 177 motorcyclists arrested in 2015 to “send a message” when bond is constitutionally required to simply ensure the accused’s appearance in court, not to be used as an instrument of oppression


The fairest district court judge in the Williamson, Travis, Hays County area is a Republican in Hays County (J. Henry), not a Democrat in Travis. 


And, there are many Republican judges on Travis County benches, only they ran as Democrats because they couldn’t get elected as Republicans.


Vote for the right person, not the party.  And, for Travis JP3, that’s Sylvia Holmes.

Opening Our Second Office: Hays County / Dripping Springs

The Law Office of Millie L. Thompson is officially expanding into Hays County, Texas.

I have worked in Hays County for years now, but my principle office has always been in downtown Austin. This month, we have added an office location in booming Dripping Springs.

If you live in Hays, Blanco, or Burnet County or in southwest Austin, set an appointment to speak with me in Dripping Springs and avoid the Austin traffic!

Tyler Harrell Trial Update - Judge Sage Denies Tyler Due Process With Jury Questions

Friday, the Defense Team waited to hear from Judge Sage about a verdict or any jury questions. They handled other cases and stayed close to the court in case they were called in for notes or a verdict. 


I have never had a jury trial when a judge failed to call me and my client in when there were jury notes.


Interestingly, Judge Sage had specifically told the Defense Team Thursday after closing argument that they did not have to come to court Friday until called - she smiled and said she knew that they had a lot of other things to do.


Texas Code of Criminal Procedure article 36.27 requires a trial court judge to try to contact the defense and give the defense an opportunity to be heard before answering a jury’s questions:

“When the jury wishes to communicate with the court, it shall so notify the sheriff, who shall inform the court thereof. Any communication relative to the cause must be written, prepared by the foreman and shall be submitted to the court through the bailiff. The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.

All such proceedings in felony cases shall be a part of the record and recorded by the court reporter.”


It is unusual for a jury to not send at least one question.


Surprisingly, Tyler’s jury sent 3 (three) notes on Friday. Judge Sage did not make any attempt to contact or inform ANY of the three Defense lawyers for any of these notes.


The jury requested evidence, including but not limited to the home floor plans and video evidence. They did not specify exhibit numbers. Judge Sage sent evidence back to the jury without giving Skip and the Defense an opportunity to evaluate whether she was sending back evidence that was responsive to their questions or included Defensive exhibits.  The defense doesn’t know what evidence was provided in response to these questions.


Due Process - at a minimum - requires that both parties be given notice of an issue and an opportunity to be heard.  Texas Code of Criminal Procedure dictates what Due Process is required with jury notes.  


From soup-to-nuts, Judge Sage has prevented Skip, Michael, and Deniz from presenting a defense, and then during deliberations denied Tyler Due Process by refusing to inform the Defense Team of jury notes.


It is unknown if Judge Sage communicated with prosecutor Chari Kelly about these notes. 

Follow-up to the Tyler Harrell Trial - Judge Sage Uses the Press to Gloss Over her Handling of the Trial

I wanted to write a short follow-up to my poorly written, typo-ridden, blog piece about the Tyler Harrell Trial, hastily posted before closing arguments on Thursday.  Two items in particular need additional attention: 1) the press’s tendency to gratefully lap-up anything the DA’s office throws at them, and 2) how Judge Sage prevented the Defense Team from presenting essential, relevant, evidence in support of their self-defense, defense of another, and defense of property arguments.


First, about the press:

The Honorable Judge Karen Sage and Travis County Assistant District Attorneys Chari Kelly and Beth Payan held an impromptu press conference in the 299th courtroom on Friday, May 4th, in an attempt to make it appear as if there had been no racist statements made by Chari Kelly.


I say that it was an impromptu press conference because when the Defense Team arrived in the courtroom, they were dramatically provided a motion by the State to disclose the transcript of a discussion in chambers on allegedly racist statements that Judge Sage ordered not to be released.  Judge Sage ruled (loudly enough for the press in the gallery to hear) that the transcript should be released after the trial is over, and that she had found no grounds to believe that racist comments had been made.


Mind you, the Defense Team still can’t talk to the press (or me) about those allegedly racist statements because Judge Sage’s gag order is still in effect.


Quite neatly, then, former assistant district attorney Judge Sage and her good friends Beth Payan and Chari Kelly set up a situation where the public is to believe that Judge Sage, in her infinite fairness, determined that her friends are not racists, while maintaining a strangle-hold on the underlying data until after the trial is over (and the media loses interest).  Nothing to see here!  Well done.  Quite clever.


The Defense Team attempted to point out that Judge Sage refused to take evidence on the issue.  How could she have ruled that her friends didn’t say anything racist, if no one ever took the witness stand?  Pish Posh!  “Testimony” – pish!  “Evidence” – posh!


The Real Problem with the Tyler Harrell Case – Judge Sage Prevented them from Presenting a Complete Defense:

To some extent, the press stuff is a red herring.  By that, I mean that the real harm that has been done to Tyler Harrell is not that Judge Sage prevented witnesses from disclosing allegedly racist statements to the media and bloggers.  The real harm during the trial was her one-sided rulings.  Though, one might argue that if racism stands at the core of the criminal justice system, these issues cannot be disentangled.


When the State tries to criminalize us, we have a right to cross examine their witnesses, and we have a fundamental right to present our own defense.* 


The Defense Team tried to present evidence during their case that the Austin Police Department botched the investigation of the shooting at the Harrell house because they failed to account for the misplaced LRAD device when reconstructing the police announcements, and how those announcements would have been heard in Tyler’s bedroom upstairs (they also did not incorporate the flash-bangs exploding outside his open bedroom window). 


When the Defense tried to go into this problem of reconstruction, Judge Sage repeatedly sustained the State’s objections.  At one point, Judge Sage got up from her bench during a break in this attempt to put on a defense.  Judge Sage said that misplacing the LRAD in the reconstructions did not make this a bad investigation.  Judge Sage said that the there was only one issue in the case – whether Tyler Harrell knew it was the cops.  She frustratedly half-yelled that she had heard no relevant questions, and when they returned from the break, there better be relevant questions, and stormed back into her chambers.   


[It is being reported by “journalists” with no understanding of the criminal justice system, rules of evidence, or the Constitution, that the Defense was the source of delay in this trial.  If that means that the Defense was trying to put on evidence that the four prosecutors didn’t like and it delayed their ability to get a conviction, then – yes, sure – the Defense delayed the resolution of the trial.  Mind you, this was an ATTEMPTED CAPITAL MURDER trial.  Three weeks for an attempted capital murder trial is nothing.  Further, I don’t see the words “fast” or “efficient” in the Due Process Clause.  By the way, the DA’s office obstructs the defense’s urging of the right to Speedy Trial all the time.]


Mind you, Judge Sage allowed the State to introduce the recording of the LRAD reconstruction.  That recording involved opening and closing doors and windows in the Harrell house, with the LRAD device pointed at Tyler’s bedroom in its cone of sound, without the use of flash-bangs - unlike how it was actually used on the night of their invasion into the Harrell home.


Think of it this way: The LRAD shoots sound.  If you point it at the target of the sound, the intended target will hear it through walls so long as it is on the right settings and the recording is intelligible.  If you point it in the wrong direction, the target of the sound will either hear something that is too faint to understand, unintelligible, or they may not hear it all, depending on a variety of factors.   If you also explode things in the person's ear, the explosions will cause some degree of hearing loss, making the LRAD sound less intelligible.


Relevant evidence is evidence that tends to make a fact in the case more or less true.**  The State relied heavily on the LRAD evidence in their attempt to prove that Tyler knew he was firing upon police.  They opened the door to any problems with the reconstruction of that sound evidence by introducing it.  By making it seem like the Defense was wasting the jury’s time by trying to attack that evidence, Judge Sage abandoned her role as neutral arbiter and embraced her role as the fourth prosecutor on the case.***


Judge Sage also excluded evidence relevant to the self-defense instructions.  The jury was charged with the law on self-defense, defense of a third person, and defense of property.  Part of the law on self-defense is that a person being arrested cannot use force to resist unless the officer uses excessive force to start off – before the arrestee resists the officer.  Excessive force is a fact intensive inquiry, meaning, all the surrounding facts must be considered when deciding if a police officer used more force than was necessary.****


Judge Sage prevented the Defense from introducing evidence of Tyler’s peaceful nature, with no history of violent misconduct.  Judge Sage prevented the Defense from introducing Tyler’s lack of criminal history (which the police would have known at the time of the home invasion).  Judge Sage prevented the Defense from introducing evidence that the police only found a misdemeanor amount of marijuana in the home after the raid. [Correction: more was found than marijuana]


20 (twenty) Austin Police Department SWAT officers, with 2 (two) tanks, armed with rifles and explosives hit the Harrell house in April of 2016 .  Do you think that this is excessive?  Chari Kelly and Beth Payan repeatedly argued in closing that this was a dangerous narcotics warrant with someone they knew had a rifle in the home. 


 THIS IS TEXAS.  Can the police dust off their tanks and put on their military gear every time they suspect a Texan of having marijuana in their house?  The State’s answer: Yes!  Yes, of course, and you better not shoot at them when they bust through your door.


How was the Defense supposed to show that the SWAT raid was excessive if they could not get into the fact that Tyler had no criminal history or history of violent behavior?


By allowing the State to call it a “dangerous narcotics warrant,” Judge Sage allowed Chari to leave an impression with the jury that Tyler Harrell had kilos of cartel heroine in his bedroom closet.  By preventing the Defense to rebut that, Judge Sage violated Tyler’s right to present a complete defense under the Sixth Amendment to the United States Constitution.


Funny aside: The first time I encountered Judge Sage was at an Austin chapter meeting of the American Constitution Society.  I was speaking on Antonio Buehler’s case during their lunch CLE.  I did not know she was a judge.  I find it darkly poetic that she attends American Constitution Society meetings when she treats Constitutional rights in this manner.  


Judge Sage’s rulings against the Defense’s case stand in stark contrast to what she let Chari Kelly get away with.  At one point last week, Chari Kelly was cross-examining the Defense’s expert witness on sound.  Chari started reading from an advertisement for the LRAD device in front of the jury.  Skip objected.  Chari argued that it was already in evidence --- when it was not actually in evidence.  Skip objected. 


Chari then moved to admit the advertisement into evidence (having already misstated to the court that it was in evidence).  Skip objected to hearsay.  Chari argued that the statements in the advertisement for the device that the device can be heard clearly through walls was not offered for the truth of the matter asserted.  Meaning, Chari claimed that she was not trying to introduce the statement that the LRAD can be heard clearly through walls to prove that the LRAD can be heard clearly through walls.  Skip argued that if it wasn’t offered for that truth – that you could heard the device clearly through walls – then it was irrelevant to the case.  OVERRULED.  “I’ll allow it,” Judge Sage said, just as she had also said when Chari introduced a report that said on its face it was not admissible in court.


It is frustrating to read “journalists” accounts of this trial, claiming that Judge Sage “scolded both sides,” or that there were no racist statements, written by people more suited to report on golf tournaments than court proceedings.  I miss Jasmine Ulloa.


I digress.  At the end of business on Friday, the jury informed Judge Sage that it was hung, meaning that not all 12 of them could reach a unanimous verdict on the case.  Judge Sage did not yet release them.  They are to continue their deliberations on Monday. 


And, so, I’m still praying for Tyler and his family, in my own way.


*The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” U.S. Const. amend. VI.  The Six Amendment protects an accused person’s right to cross-examine the witnesses against him. Davis v. Alaska, 415 U.S. 308, 316 (1974).  An accused person on trial is entitled to great latitude to show that a witness is biased or has a motive to falsify his testimony. Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982).  Evidence is relevant if it has any tendency to make a fact at issue in the case more or less probable. Tex. R. Evid. 402.


“A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense – a right to his day in court – are basic in our system of jurisprudence, and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” In re Oliver, 333 U.S. 257, 273 (1948).


The right to call witnesses and present a defense are fundamental to our Constitutional Republic. Washington v. Texas, 388 U.S. 14, 20 (1967).,44


**Trial courts cannot Constitutionally intimidate defense witnesses into silence. Webb v. Texas, 409 U.S. 95, 93 (1972).  “A defendant has a fundamental right to present evidence of a defense as long as the evidence is relevant and is not excluded by an established evidentiary rule.” Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (citations omitted).  Relevant evidence addresses a material issue in the case and tends to make it more or less likely to be true. Id.


A botched police investigation is fair game for defense attorneys on cross-examination in every criminal case. See e.g. Cueva v. State, 339 S.W.3d 839, 861-862 (Tex. App.—Corpus Christi 2011).


*** A judge that aids the State is not neutral or detached. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 (1979).  “Whatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement.” Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972).


Further, a judge improperly gains personal knowledge of facts when she engages in ex parte communications with one party to a contested case. See Abdygapparova v. State, 243 S.W.3d 191, 208-10 (Tex. App.—San Antonio 2007, pet ref’d).  It seems that Judge Sage, Chari, and Beth planned that the State would present their motion to disclose the transcript and the judge would rule in front of the press.  The Defense was not privy to that plan.  Note, also, that at the end of Wednesday, Judge Sage made it seem like the parties would have closing arguments Friday morning, taking Thursday to do offers of proof and the jury charge.  Then, Judge Sage pushed to having closing arguments Thursday afternoon, rushing through the jury charge.  SWAT knew that arguments would be Thursday – they were there early to take their seats close to the jury box.


****Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008).

Texas v. Tyler Harrell - Prosecutorial Misconduct & a Judge's Power to Help Prosecutors

I started paying attention to the State of Texas v. Tyler Harrell case after hearing rumors of prosecutorial misconduct in the form of racial slurs that Judge Karen Sage of the 299th District Court of Travis County ordered not be repeated by the witnesses to the slurs.

[Correction: now that the gag order has been lifted, I’ve learned it was more in the nature of dog-whistle racism]


My colleague and I filed a Petition for Writ of Mandamus on the gag order Judge Sage entered related to these alleged racial comments made by someone on the prosecutorial team; we filed it on May 1, 2018.  The Court of Appeals won’t have ruled on that Mandamus before this trial is over.


Essentially, we are asking that the Court of Appeals order that Judge Sage lift the gag order so that the defense attorneys can tell us what prosecutor Chari Kelly said about Skip Davis that was racist.  Chari Kelly is running for appellate court judge.


The person charged in the case – Tyler Harrell - appears to have an African American father and white mother.  Mr. Harrell’s attorney Skip Davis is African American.  Mr. Harrell’s other attorney Deniz Kadhiran has a mixed ethnic background. 


The two prosecutors actually taking witnesses have been Chari Kelly, who is blonde white woman with blue eyes, Beth Payan, who appears to be white.  And, there is an African American male prosecutor sitting at counsel table.  Judge Sage is white. [They let their third chair take witnesses later in the trial]


“Prosecutorial misconduct” has the same effect on me that seeing a squirrel has on a dog – I get real interested real fast.


And, so, this week, I’ve spent time watching the tale-end of the trial in the 299th, doing my own work on my laptop as I watch the proceedings.  Within the first ten minutes of watching the proceedings, my blood pressure sky-rocketed. The animosity directed at the defense from the judge and prosecutors has been viscous and stifling.  More on the treatment of the defense like redheaded step-children in a moment.


Tyler Harrell is charged with attempted capital murder, meaning that the State must prove beyond a reasonable doubt that he intended to murder a police officer but failed to actually kill one.  The State must also prove beyond a reasonable doubt that he was not acting in self-defense, defense of his mother, or to protect his property.


Essentially, the Austin Police Department got a No-Knock Warrant to search Tyler Harrell’s home.  Seventeen-year-old Tyler and his mother were at home in the wee hours of the morning.  Tyler was asleep in bed, and his mother had just gotten up to go to the bathroom when they heard loud explosions and the door downstairs being busted in.  Tyler’s mother laid flat on the floor upstairs where their bedrooms were and watched her son, face terrified, shoot down the stairwell of their home.  Tyler stopped shooting and asked who was there.  They learned it was the police.  Tyler immediately put down his rifle.  Tyler was arrested in his boxer shorts. 


The police found misdemeanor amount of marijuana in the house after his arrest and Xanax.


The State seems to be contending that the LRAD device they used to shoot loud messages at the house was of good quality and loud enough for the people inside to hear that the police were announcing themselves before Tyler Harrell fired his rifle.  He knew they were police, therefore, he attempted to murder a police officer, says the State’s prosecutors.


This week, the Defense Team has presented evidence in the form of expert witness testimony that the line of sight down the stairwell was such that they would not have been able to see that it was police busting into their home. Expert Andre Stuart developed exhibits that show the house lay-out and the lines of sight from Tyler’s position outside his bedroom upstairs, down the stairwell to the first floor where the police burst into the house and started exploding incendiary devices.


The Defense team’s expert on sound explained to the jury that the LRAD is supposed to be used by playing a carefully pre-recorded message at a decibel level that can be heard through a barrier (like walls).  In this case, flash-bang devices were also being used during the use of the LRAD, meaning, Tyler Harrell would have heard explosives going off at a decibel level that would create some level of ringing in the ears.  The flash-bangs were going off at the same time the police were announcing themselves outside the house.  Further, Tyler and his mother’s home had a unique foyer shaped like a cylinder, which would have distorted the LRAD noise being beamed at the house.  Some neighbors testified that they did not hear the LRAD.  Because of their location, it is likely that the LRAD was aimed in a direction that would not have had Tyler Harrell’s bedroom in the beam of sound.  The combination of loud flash-bang incendiary devices, with an improperly used LRAD, beamed in the wrong direction, make what Tyler Harrell said plausible:


He did not know they were police until after he fired his rifle. 


Tyler Harrell’s mother testified on Wednesday, May 2nd.  She testified about the home invasion, explosions, fear, and how Tyler Harrell put his rifle away when he learned that there were police in his house.


Tyler Harrell was in high school at the time they raided his home in SWAT gear, rifles, and flash-bangs.


The Defense Team made up of Skip Davis, Michael Chandler, and Deniz Kadirhan has been fighting against four prosecutors, three at the prosecutor’s table and one on the bench.  Judge Sage has been visibly and almost continually angry, dismissive, outraged, and disbelieving of the defense during the trial this week.  Her demeanor at bench conferences clearly expresses to all watching (including the jury) that she at least annoyed, but sometimes furious, with Skip Davis and Michael Chandler.  Here are some examples:


The first significant outburst that I witnessed from Judge Sage happened on Tuesday, May 1st, during prosecutor Chari Kelly’s cross examination of defense expert witness Andre Stuart.  Chari Kelly repeatedly read from this report during her cross of the expert:

The problem with Chari reading this report into the record is three-fold:

A.      The report itself states that it is not admissible in court,

B.       Texas Code of Criminal Procedure in article 38.01 specifically states that this report is not admissible, and

C.       Chari failed to lay the proper foundation to establish the report as a learned treatise under Texas Rule of Evidence 803(18). No one had testified that the document was a learned treatise.

Skip Davis objected to Chari reading from the report.  Judge Sage overruled him.  Chari continued reading.  Skip objected again. 


Chari demanded that the expert admit that the report said exactly what she was reading, and the expert tried to explain that he substantively disagreed with the report.  Judge Sage became annoyed with Skip and annoyed with the expert shrilly admonishing: “Mr. Davis – can we just let her; can you just let her; [turning to the expert] can you just listen to the questions and answer them!” 


Chari continued to try to force the expert to admit that she was correctly reading from the report that is not admissible in court.  Skip again objected, and the lawyers went into a bench conference in front of the jury.  Judge Sage was visibly angry at Skip Davis’s continued objections.  By visibly angry, I mean that I could tell that her face was contorted, with her eyebrows pulled down and together, she bounced up and down in her chair as she punctuated her words, and she lunged toward him when she talked to him.  In contrast, she would soften her eyebrows and smile and nod as Chari Kelly spoke. 


At this bench conference, about a document that said on its face that it was not admissible in court, Judge Sage threatened Skip with contempt of court if he continued to object.  Everyone watching could read her lips and hear the hiss of her whispering.


The problem with Judge Sage being angry about objections is this: Tyler Harrell is facing penitentiary time for the offense of attempted CAPITAL MURDER.  His lawyer MUST preserve the record for appeal.  Any failure to object to improper questions would waive that error on appeal.  Every single time the prosecutor says something improper, the defense must make a timely and specific objection to the impropriety.


If Skip didn’t preserve the record, he could be found to have provided his client with ineffective assistance of counsel, meaning that his failures to object would amount to a violation of Tyler Harrell’s 6th Amendment right to an attorney.  By threatening Skip with contempt for objecting each time that Chari improperly read a report that on its face said it was not admissible in court, Judge Sage put Skip between a rock and a hard place.  On one side, if he advocates for his client and preserves the record, Skip may go to jail.  On the other side, if he saves himself, he would be sacrificing his client’s chances on appeal.  Skip chose to fight for his client, and he kept objecting.


Skip then got the expert witness back on re-direct and he attempted to go into the fact that the report says on its face that it is not admissible in court.  Judge Sage looked furious.  She had threatened Skip with contempt if he “undermined her rulings.”


Judge Sage finally actually read the part of the report that says it is not admissible in court.  She angrily got up from the bench and took a ten-minute recess.  When she came back, she stated that she would be instructing the jury to disregard what Chari Kelly had just done with that report.  She did not express any annoyance with Chari about what she had repeatedly done.  Judge Sage did not threaten the prosecutor with contempt if she did it again.


Michael Chandler attempted to put on the record that Chari had flaunted the court and the rules of evidence.  Judge Sage admonished him not to personally attack Chari.


And, so it has gone.  Judge Sage smiled and nodded at everything the prosecutors said and argued.  And, she lunged, bounced in her chair, frowned, grimaced, and pounded her hand on the bench in front of her when anyone from the Defense talked.  At the end of the Defense’s case-in-chief, they were discussing scheduling at the bench with the jury in the room.  Judge Sage’s hissing whispers could be heard in the back row of the courtroom.  At one point, I heard her tell Skip that he was “yanking her chain” and she didn’t “buy any of that.”  This moment was typical of Judge Sage’s attitude to the Defense and how she was not afraid to let the jury see how illegitimate the Defense was.


Worse still, Judge Sage would look over and nod at the prosecutors when she was expecting an objection, and then the prosecutor would object after being signaled. 


Even worse, Judge Sage ruled on Skip’s objections before he finished his objections.  Skip would stand and say “objection,” and Judge Sage would immediately say “overruled,” before he explained what his objection was.  Again, he has a duty to his client to make a record of his objections.


At the end of their long day on Wednesday, May 2nd, Judge Sage stormed back into the courtroom from her chambers and yelled at Skip that she saw on security video that he had waived a disc in the air during testimony about Tyler’s statement to police and that she would grant a mistrial if that happened again.  She yelled that she was tired of being told how unfair she was being.  She yelled that only the court of appeals would judge her.  She doth protested a bit too much.


Today the defense made an offer of proof of the various pieces of evidence that they sought to introduce in the trial but were obstructed by the prosecution.  Judge Sage’s body language was as it had been during the Defense’s case-in-chief (except when she took time to yell at the defense): She kept her back turned to the defense table and played with her computer or texted on her phone as the Defense made their record.


I am waiting now to listen to closing argument.  And, I’m praying for Tyler Harrell and his family in my own way.

Drink a glass of Honesty, take two Judicious Restraints, sleep off the Power Trip, and call us in the morning.

In a perfect world, the criminal justice system would work as follows:

1.       Witness tells the police that a crime has occurred,

2.       Police thoroughly investigate and make a probable cause based arrest,

3.       Prosecutors evaluate whether the police got it right and decide if they want to prosecute the accused person.  Then, if the prosecution decides to go forward,

4.       Defense lawyer evaluates the evidence, listens to the client, and informs the client whether they should take a plea or push for a trial.  Then, if the case goes to trial,

5.       Judge plays referee, calling balls and strikes to ensure that the trial is fair.

But, if the police learn that they got the wrong person, they should inform the prosecutor, while continuing the investigation to decide who is the actual perpetrator - or determine if the witness filed a false report.  If the prosecutor discovers that the accused is the wrong person, the witness lied, or the police officer lied, the prosecutor should dismiss the case.  If the defense lawyer is told by the client that the client is innocent, the defense lawyer should fight like crazy to defend the client. 


Unfortunately, we don’t live in a world where any of these steps are carried out in good faith on a regular basis.  When police learn that they don’t have probable cause to make an arrest, they CYA.  When prosecutors learn of evidence that exculpates the accused, they hide it.  And, one judge in Fort Worth literally tortured a defendant during his trial.  Worse, that defendant’s lawyer – his zealous advocate - never bothered to object to the judge’s actions.


In the criminal justice system, we all have an obligation to do our jobs to the best of our abilities.  When any of the players involved in the system lie, cheat, steal, or nap on the job, we all have an obligation to make sure that their chicanery does not undermine our system.


There is no such thing as “The Law,” as some sort of absolute mandate that is unmovable and solid.  Instead, the legal system is a breathing pulsing body that ingests and excretes.


People say that the criminal justice system is broken.  I disagree.  To say that it is broken requires imagining the system to be a machine or solid object.


I think it is far more accurate to say that the system is deathly ill.  When the system eats our neighbors, and through dyspeptic malignant cirrhotic means excretes innocent people into prison or a new type of twisted existence where they are “criminals,” that’s a sick system.  That’s a system that disgusts those who are paying attention.  During this moment in history, when we have lost faith in the executive and legislative branches, it is essential that the judicial branch, specifically the criminal side, take some medication, get some rest, eat a healthier diet, and start an exercise regimen.  Or, drink a glass of Honesty, take two Judicious Restraints, sleep off the Power Trip, and call us in the morning.

Call to Action - Tell Travis County: "Don't Waste Our Tax Dollars on an Unnecessary Security System."

I loved the following quip when I first saw it: Like Lawyer Jokes?  Next Time You’re in Trouble, Call a Comedian.

This is my call-to-action for anyone who disapproves of wasting tax money on non-existent problems created by law enforcement.  This is my call-to-action for anyone who supports the criminal defense bar.  Below, I ask you to write to the Travis County Commissioner’s Court to voice your disapproval of wasting $374,000.00 on additional security screening at the Criminal Justice Center courthouse.


Criminal Defense Lawyers are people, too:

When I first started practicing as a criminal defense lawyer, I was bombarded with the question: How do you defend someone you know is guilty?  My response was always three-part: 1) Most of my clients were only guilty of having a bad day, 2) The Punishment for many crimes is far too severe, and 3) Even if they are guilty of something (often they are not), is it something that should even be a crime?  There are now so many criminal offenses, you (yes, you, reader) are guilty of three felonies every day of your life.  


I watched one jury selection wherein the defense attorney asked the potential jurors to use an adjective to describe prosecutors and an adjective to describe defense lawyers.  Once one of the potential jurors used the word “slimy” to describe defense lawyers, many of the subsequent answers echoed “slimy.”


As the Innocence Project continues to exonerate innocent people, most people increasingly agree that the criminal justice system is broken.  Judges in the 9th Circuit have suggested that it is time to charge prosecutors with perjury when they lie. 


2015 set a record for exonerations – people who spent decades of their lives in prison were set free as we acknowledged their innocence.  


People are beginning to understand that prosecutors do not always wear the white hat in the courthouse.  Sometimes they intentionally hurt innocent people – see, for example, Michael Morton’s story.  


Defense lawyers are the one obstacle between the awesome power of the government and your life, liberty, ability to walk the earth, go to and fro, work, love, and be able to mind your own business. 


I do not defend criminals.  I defend human beings that the State has decided to try to criminalize.


Why am I telling you all this?  Defense lawyers in Travis County need your help.


Lawyers are officers of the court, and had been able to bypass security with badges:

For years, like many other counties, Travis County defense lawyers submitted to a background check and were issued badges by the Travis County Sheriff’s Office.  That badge was then used to enter the courthouse without having to pass through security (it has other uses as well that are not at issue here).  Defense lawyers, along with clerks, prosecutors, and any other county employee with a badge, could bypass security. 


This worked.  There has never been a problem with this system.  There have been no security breaches.  No one has been put in danger by this system.


Things started to change last year.  The Sheriff’s Department decided to spend money on a machine that would track defense lawyers coming into the courthouse.  Unlike prosecutors and clerks who were permitted to bypass the machine, defense lawyers had to essentially electronically sign into the courthouse with their badge.  They could still circumvent the security screening, but their pattern of coming to the courthouse was tracked.


I surrendered my badge and started going through regular security when they made this change.  Being tracked by law enforcement is not something to which I will ever voluntarily acquiesce. We have far too much surveillance as it is.  They track us everywhere we go with license plate readers. 


Ghettoizing defense lawyers is a bad thing:

Now, the Sheriff has petitioned and been approved for $374,000.00 for an additional change.  The Travis County Commissioners approved a plan that would implement full screening – meaning that there will be two metal detectors.  One will be used by the public, the other will be for those with badges. 


At this point, they claim that prosecutors (who have their own side-door to access the building) and clerks will also be put through full screening.  I call bullshit.  There’s no way prosecutors are going to be put through full screening.  There is not a county in the State of Texas that requires prosecutors to take off their belts and put their briefcases through an x-ray machine.  Travis County will not be the first.  (I have practiced in dozens of counties over the last five years.  If I am wrong about this and you know of a county wherein prosecutors have to take off their belts and go through security, please post a comment below.)


And, so, what is very likely going to happen is that Travis County is going to blow $374,000.00 on a security system we don’t need that will most likely be used to screen defense lawyers.


Some of you will – justifiably – say: “Millie, quit your bitchin’.  Go through the screening like jo-blow-public.  You’re not special.”  To which I must retort, I already do go through full screening, standing in line with my clients.  By choice, I do this.  The problem is 1) the waste of tax dollars on a non-existent problem, which will 2) further ghettoize defense lawyers. 


For decades, the public has been poisoned with some really good propaganda about the heroism of prosecutors through shows like Law and Order.  And – of course – shown how slimy defense lawyers are.  Bullshit.  The truth is every lawyer in the courthouse promised to uphold the Constitution when we got our licenses, and defense lawyers are usually the only ones raising Constitutional issues in response to the State’s zealous prosecution of normal human beings like you, reader. 


Do you like the Constitution?  Then you must love defense lawyers.  We’re the only ones who know which amendment is which.


Call to Action:

What am I asking of you?  Send an email to the commissioners, expressing your disapproval of wasting more than $374,000.00 on fixing a non-existent security problem.  Williamson County doesn’t work this way.  Hays County doesn’t work this way.  Harris County doesn’t work this way.  Why is Travis County the only one who thinks this is a good idea?  Why are they wasting money?


Here are the commissioners’ email addresses:

Precinct 1 –

Precinct 2 –

Precinct 3 –

Precinct 4 –

County Judge:


Think defense lawyers are slimy and should be put through full screening?  



Keep the Courthouse Doors Open to Poor People, Please, Texas Supreme Court.

The Texas Supreme Court heard oral argument on an important case affecting access to the courts for people without money, Campbell, et al. v. Thomas Wilder, Tarrant County District Clerk, at 9:00 a.m. this morning.  The crux of the case is this: Whether the Tarrant County District Clerk can assess costs of court against people who filed affidavits of indigency with the clerk.  The Justices had some interesting questions for the attorneys.  I summarize the issues in the case below, the significant public policy interests at stake, and give you my opinion.


Court clerks maintain court records, and they make sure that people pay for utilizing the courts.  Court clerks oversee case files.  And, court clerks send out notices to people involved in lawsuits about their court dates and whether they owe money to court. 

Procedurally, if you (a pro se litigant who does not have an attorney) want to sue someone because they owe you money or to stop them from doing something, you go to the clerk of the court with your lawsuit papers, and you hand them those papers to file along with a check for the filing fees.  In Travis County, for example, it costs about $300 to file a lawsuit in district court, and you can view the various fees here

Divorce is a type of lawsuit.  Divorce is the number one type of lawsuit that people file without hiring a lawyer.  The Supreme Court of Texas has put out some standard forms for pro se (or, people without attorneys) litigants looking to get a divorce, keeping in mind the reality that many people cannot afford to hire an attorney to end a marriage.  You can find those forms here.

Married couples that want a divorce do not have to stay married if they are broke.  Even though the clerk of the court has a fee list, and is supposed to charge $X to file for divorce, if the married couple is indigent, the clerk is supposed to waive those fees.  Texas Rule of Civil Procedure 145 provides a way for people without money to access the courts.  A person that cannot afford to pay court costs fills out a form outlining their bills, debts, and income.  If that form demonstrates that the person is indigent, then the person can still file a lawsuit, but without having to pay the clerk any money.  Indigent just means that the law recognizes you cannot afford to pay for the lawsuit.  Here is an example.

In the Campbell v. Wilder case, Tarrant County accepted indigent affidavits from people who filed for divorce.  The fact that the people were indigent was not contested.  The people then got divorced.  In the final judgment, the standard form paperwork would include a statement that the parties would pay their own costs.  


Based on that “husband will pay his costs, and wife will pay her costs” language, the Tarrant County District Clerk – Thomas Wilder – started sending out debt collection letters to divorcees that had filed affidavits of indigency.  Meaning – Husband filed for divorce and swore to the clerk that he had no money (or that his income did not match his expenditures such that he could not pay for the costs).  Clerk accepted that affidavit and allowed Husband to file for divorce without paying the costs.  Husband and wife divorced and stopped being husband and wife.  Then – because of the boilerplate language on the judgment that they would be responsible for their costs, the Clerk sent out “Clerk’s Certification of Payment Default” letters to former husband and wife.


In the “Clerk’s Certification of Payment Default” letters (and one was used as an exhibit for oral argument this morning that you can view here), the divorcees were told that their property would be seized by the sheriff if they didn’t pay for their court costs – court costs that the State of Texas says they don’t have to pay because they were indigent when they filed for divorce. 

Some of the people who received these debt collection letters thought they were going to be jailed if they didn’t pay.  These letters went out months after the divorces, and in some cases were sent years after the people got their divorces.  You can read about them here in the Plaintiff’s brief.

The Tarrant County District Clerk, Thomas Wilder, argued that these notices were perfectly appropriate because it is the clerk’s job to give effect to a judge’s order.  And, the orders in these cases said that the parties would be responsible for their costs.  In none of the cases, however, had the parties been found to be able to afford any costs – the affidavits of indigency had not been contested.  The language in the judgments was just standard form language – without a specific finding that the parties could afford the costs.

MANY letters were sent to indigent divorcees by the Tarrant County District Clerk, Thomas Wilder.  And those divorcees sued to enjoin Mr. Wilder from collecting this debt because it is a debt that does not exist.  The indigent litigants also sought mandamus and declaratory relief.  Basically, they asked the courts to tell Mr. Wilder to stop shaking down poor people for costs that Texas law says they don’t owe.

The Clerk argued successfully in the court of appeals that injunctive relief was inappropriate because the indigent litigants did not file in the right court.  They were supposed to challenge the costs in the trial court that entered the judgment.  Because, argued the Clerk, they filed their suit in a different court, they could not get injunctive relief.  The Clerk's attorney admitted, however, that mandamus and/or declaratory relief was available regardless of which court the suit was filed in.  The problem with mandamus and declaratory relief is that the Clerk wouldn't be prohibited from continuing to send out the debt collection letters.  Injunctive relief, on the other hand, would prevent Mr. Wilder from sending any more of these letters to people that had a valid affidavit of indigency on file.

Lee DiFilippo originally filed the lawsuit, and was responsible for building the record.  Lee has nurtured this case like it is her flesh-and-blood baby.  She is completely committed to access to justice for people who lack money (and that is what a poor person is – just a human being without cash).  Lee’s own practice involves providing limited scope legal services for people who need some guidance from a lawyer, but can’t afford a full retainer.  Former Chief Justice Wallace B. Jefferson handled oral argument in favor of the indigent litigants in front of the Supreme Court this morning. 

Justice Guzman asked many interesting questions, pointing out to the Clerk’s lawyer that she herself had once been a family court judge.  Justice Guzman made the point that if one is indigent, even if the divorce decree says that the parties pay their own costs, nothing would be owed – because of Rule 145.  If there is an uncontested affidavit of indigency on file, no costs are owed. 

The Texas Supreme Court can hold that injunctive relief is appropriate in this case, the trial court had subject matter jurisdiction, and remand the case for a full trial on the issue of whether the Tarrant County District Clerk should be stopped from hustling money out of poor people.  The Court of Appeals ruled against the indigent litigants on this point, with a conscientious dissenting justice that explained that what the Tarrant County District Clerk is doing “locks the courthouse door for thousands of indigent parties in Texas who need it the most.” Wilder v. Campbell, 430 S.W.3d 474, 485 (Tex. App.--Fort Worth 2014, pet. obviously granted), which you can read here.

At one point, a justice inquired whether other clerks were doing this in other counties.  Former Chief Justice Jefferson stated that he did not know.  You can find the Texas Tribune's account here.  

I think if Tarrant County is doing this, there has got to be other Texas clerks out there who see budget shortfalls and try to shake money out of indigent litigants.  There is no way Tarrant County is the only one, out of 254 counties.  Rule 145 is incredibly important.  Imagine a world where you are only allowed to file for divorce if you have money.  Imagine the number of people who would separate and never be able to get married again because they’re still married to the asshole they left 25 years ago!

There is already a significant justice gap in Texas, meaning that there is a large number of people who work, are not considered to be in poverty, but cannot afford to pay for an attorney.  I would include myself in that category – there is no way I could scrounge $7,500-$10,00 for an attorney right now, given my student loans and fluctuating income.  I’m not indigent.  But I would have to handle any sort of litigation pro se.  Lucky for me I have legal training.  Most do not.

Given the already large number of people who cannot afford an attorney, closing the courthouse doors to poor people entirely is absolutely unconscionable.  After all, poor people are just people without cash.  Forcing them to stay married, even to abusive spouses (yes, there were people who divorced abusive spouses who received Wilder’s debt collection letters), is ridiculous.  I trust that the Texas Supreme Court will do the right thing in this case to keep those courthouse doors open, and send a message to Wilder and any other clerk who has the same bright idea.

Finally, for those of you who vote: Please pay attention to local elections.  The clerks in your county have a hell of a lot more power than you think, and they have more of a real day-to-day impact on your community than does the President.  Most people don't even know the local judges' names, let alone the clerks.  Those local elections - in many ways - are more important than national elections.  See for example - everyone's favorite clerk in Kentucky.  

Letter to Representative Eric Johnson on the Unconstitutionality of House Bill 1035.

Representative Villalba's Bill that would criminalize people who filmed police within 25 feet was quickly quashed by a massive outpouring of constitutionally generated condemnation.  Representative Johnson's Bill on filming the police seemed a little more reasonable.  What's wrong with a police officer telling someone to change his location?  Antonio Buehler and I testified in the public comments hearing against House Bill 1035, that would require filmers to obey police officers before they could avail themselves of their First Amendment right to film the police.  Below, I have cut-and-pasted my letter to Representative Johnson.  I did not fix the 6 typos I saw after I sent the letter - I'm keeping it 100...




401 Congress Ave., Ste. 1540

Austin, Texas 78701


Facsimile (512) 682-8721



April 27, 2015


HB 1035: Concerns Regarding its Constitutionality



Texas State Representative Eric Johnson

District 100

1409 S. Lamar Street, Ste. 9

Dallas, Texas 75215

(214) 565-5663

By Email to:










Dear Mr. Johnson,


Pursuant to discussions with your Policy Analyst, Ms. Hannah Alexander, I put together my concerns about House Bill 1035.  You will find an outline of the Constitutional problem with conditioning a First Amendment right on obedience to a police officer.   You will also find a discussion on how our Fourth Amendment right to be free from unreasonable seizures is implicated.  Given your stated goal of educating the public and police about the right to film, I offer some alternative proposed language for Texas Penal Code Section 38.15.  Thank you for being open to our input.


Briefly, about me: I am a criminal defense lawyer, whose practice spans most of the state of Texas.  Specifically relevant to HB 1035, I represent activist clients charged with interfering with a police officer under Texas Penal Code 38.15, who were filming the police, with cases pending in both Houston and Fort Worth.  I represent Antonio Buehler, who has been targeted by the Austin Police Department for filming them.  I have tried cases to juries where my clients were charged with disobeying a police officer under municipal codes in both Austin and Houston.



A summary of the problems with the proposed amendment to Texas Transportation Code 542.501:


The original proposed amendment to Texas Transportation Code, Section 542.501 provides:

(b) Subsection (a)(1) does not apply to an order or direction to cease filming, recording, photographing, documenting, or observing a peace officer while the officer is engaged in the performance of official duties. An officer may give an order or direction to change a person’s proximity or position.

The words "reasonable and lawful" were inserted into a new draft.  Despite the changes, this Bill is not a valid time, place, or manner restriction on our First Amendment rights.  Because it authorizes police officers to arbitrarily order people to move in a public forum – where we have a First Amendment right to be, it gives officers too much discretion.  The proposed change to 542.501 is (a) unconstitutionally void for vagueness, (b) gives police unbridled discretion to violate First Amendment rights, and (c) it allows for suspicion-less seizures contrary to established Fourth Amendment jurisprudence.

The amendment to Texas Penal Code, Section 38.15(c) provides that it is a defense to prosecution for interfering that “the conduct engaged in by the defendant […] consisted only of filming, recording, photographing, documenting, or observing a peace officer and if lawful orders by a peace officer to change proximity or position were obeyed.”

Texas Penal Code, Section 38.15(d), however, already provides a defense to prosecution that the interference was “speech alone.”

Because HB 1035 distinguishes between the co-equal First Amendment rights to speak in 38.15(d) and gather information in 38.15(c), it must “be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.”[1]

During public comment on HB 1035, it was stated that this Bill does not create new law, but instead is intended to inform the public and police about the right to film.  No substantial state interests were uttered that would justify treating speech and filming differently.  No substantial state interests were uttered that would justify authorizing police to arbitrarily decide who gets to stand where in a public forum.

Below, I go through the law.  Second, I give some experientially based scenarios regarding how police view these situations on the ground.

First Amendment Law: Filming is Speech.

Filming is speech.  The First Amendment equally protects A) our right to assemble in a public forum, B) speak on a matter of public concern, and C) receive and gather information.[2]  Filming falls under the ‘receive and gather information’ right.[3]  Without the right to appear in a public forum and gather information, the right to speak would be meaningless – we would have nothing interesting to say. 

Police conduct is almost per se a matter of public concern. [4]

A public sidewalk is a traditional public forum.[5]  The government’s ability to restrict speech in traditional public fora is strictly limited.[6]  The government may, however, impose reasonable time, place, or manner restrictions if and only if 1) the restrictions are justified without reference to the content of the regulated speech, 2) the restrictions are narrowly tailored to serve a compelling governmental interest, and 3) they leave open ample alternative channels for the exercise of First Amendment rights.[7]

Here, HB 1035 is not content neutral – by definition, a person observing and filming the police is in a public forum in order to film the police.  Police conduct is the content.  The Bill begins with “relating to criminal offenses involving the filming, recording, photographing, documenting, or observing of a police officer.”  Clearly, the Bill is targeted at the First Amendment right to gather information on the police.  HB 1035, therefore, is not content neutral.

A law is void for vagueness when it gives law enforcement unbridled discretion.

As a matter of Constitutional law, legislation cannot be amorphous,[8] but instead must be calculated to inform ordinary people how to conform their conduct to the law.[9]  Clearly defined traffic laws, allowing the police to regulate traffic flow, do provide the requisite level of notice to the public.[10]  When, however, a legislature fails to set reasonably clear guidelines for law enforcement officials and triers of fact to prevent “arbitrary and discriminatory enforcement” of the law, the statute is unconstitutionally void for vagueness.[11]  When a law permits “selective law enforcement, there is a denial of due process.” Id.

The proposed change to 542.501 gives police unbridled discretion to order people to move in a public forum, unrelated to traffic control.  The statute gives no guidance to law enforcement on how to conduct themselves, nor does it give the public notice of what is and is not a crime.  Instead, it is left to individual police officers in the field to create law in the moment by giving orders to change position or proximity.  Courts have roundly rejected police officers’ attempts to criminalize protected speech by using discretionary charges.[12]

Please take particular note of City of Houston v. Hill, 482 U.S. 451 (1987).  The Supreme Court rejected a municipal ordinance because it “effectively grant[ed] police the discretion to make arrests selectively on the basis of the content of the speech,” which the Court found “particularly repugnant.”  The Court explained that our freedom to “verbally oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Hill, 482 U.S. at 462-63; see also Mesa v. Prejean, 543 F.3d 264 (5th Cir. 2008). 


Fourth Amendment jurisprudence requires a police officer to reasonably believe a person has, is, or will commit a crime before seizing him.

A person is seized “when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.”[13]  An officer can even unintentionally seize someone for Fourth Amendment purposes: “an unintended person … [may be] the object of the detention, so long as the detention is willful and not merely the consequence of an unknowing act.”[14]  To determine whether law enforcement has seized someone, we ask whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. (citation omitted).  When an officer exercises such control over the situation that a reasonable person would not feel free to refuse, then a seizure has occurred. See Id

Police cannot seize people without reasonable suspicion to believe that they are committing a crime, with some notable exceptions.[15]  “Absent reasonable suspicion, officers may conduct only consensual” encounters with civilians.[16]  A police officer has reasonable suspicion to believe a person has, is, or will commit a crime if and only if the officer can “point to specific and articulable facts which, taken together with rational inferences from those facts,” lead the officer to reasonably think the person has, is, or will commit a crime.[17]  Reasonableness is evaluated objectively, not subjectively.  The officer’s subjective belief is irrelevant. Id.

The proposed change to 542.501 ostensibly gives law enforcement the right to order people around absent reasonable suspicion to believe they are committing a crime.  Such orders are seizures – reasonable people would not believe they could defy the police officer with impunity.  While the police have an established ability to direct traffic for the clearly compelling governmental interest in public safety on our roadways, there is no constitutionally permissible authority to regulate our position on an otherwise available public sidewalk.[18]

Making the right to film conditional upon obedience to police ghettoizes the right to film.

Further, the fact that the Bill makes a First Amendment defense of filming conditional upon submission to police authority, demonstrates an intention to restrict activists who film the police.  There is already an established defense to prosecution in 38.15(d) that says that it is a defense to prosecution that the alleged interference constituted speech alone. 

Filming is speech.  Separating out the act of filming from the established First Amendment defense in the statute, ghettoizes filming.  Because filming is a co-equal to the First Amendment right to speak, the proposed amendment “diminish[es] the credibility of the government’s rationale for restricting [filming] in the first place.”[19]  “Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”[20]  

Why is it an unconditional defense to prosecution that the interference constituted speech alone, but the proposed filming defense is conditional upon obedience to police authority?  Notably, there were repeated references to “frivolous lawsuits” during opening of public comments on HB 1035.  It strains credulity that this Bill isn’t directed at activists who film the police.

HB 1035 is not content-neutral.

“When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.”[21]  Further, “[s]elective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.”[22]

Here, the Bill authorizes police officers to tell filmers to move, and conditions a First Amendment right on obedience to that police officer.  First, a filmer who films police wants to gather information about police.  The police officer, who is ostensibly given unbridled discretion to order the filmer to move, is himself the content.  There is a clear conflict of interest in giving an officer discretion to tell someone to change positions in a public place when that officer is himself the subject of the filmer’s First Amendment protected interest.  There is a grave conflict of interest in giving a police officer the ability to destroy a First Amendment defense to prosecution by merely giving the filmer an order.

Second, 38.15(d) provides a defense to the charge of interference that the alleged interference is speech alone.  That defense is not conditioned upon any obedience to a police officer.  HB 1035 separates filming from speaking in a way that is not supported by any First Amendment jurisprudence.  There is no stated reason why the right to film is conditional, but the right to speak is not. 

No police officer thinks he’s unreasonable.  HB 1035 does not define a “lawful order” consistent with Fourth Amendment jurisprudence.

I see the words “reasonable” and “lawful” included in the proposed changes to 38.15(c) and 542.501.  The practical problem with these words is this: Police officers all think they’re reasonable people!  They wouldn’t dream of giving unreasonable orders. 

Likewise, police see the word ‘lawful’ and believe it means that their order is good so long as it does not require the subject to commit a crime.  In fact, I have had lawyers approach me and ask what a “lawful order” is (since the Antonio Buehler trial).  They assumed it merely meant that the officer didn’t order the person to commit a crime.  I then had to explain that a lawful order also complies with the Constitution.  Most lawyers, judges, and police officers do not automatically consider the Fourth Amendment implications of orders unless there is some evidence to be suppressed. 

As explained above, once a person feels that they have to comply with an order, they’ve been seized.  If there’s no reasonable suspicion for that seizure, it is an illegal order.  Police officers don’t make these connections.  Because they don’t automatically connect their Fourth Amendment training to the orders they give in the field, police officers cannot be expected to exercise restraint when they see the amended language in 542.501.  Law enforcement will interpret that language to mean that they can order anyone to move, and so long as they don’t order the person to commit a crime, the order is sanctioned under Texas law.  As such, the amendment will in fail in the stated goal of educating law enforcement on the public’s rights.  Law enforcement will be better off with additional training in the Fourth Amendment.  Further, civilians would have no idea what the law is until they are ordered to comply with an officer’s discretionary view of where it is appropriate for the person to stand.  The proposed amendment is therefore void for vagueness.

Austin Police Department created a game-of-gotchya that HB 1035 would codify.

Antonio Buehler was illegally arrested for photographing and verbally expressing disapproval of APD officers’ treatment of a defenseless woman.  He found himself facing serious felony charges for allegedly spitting on the officer he verbally challenged.  A passerby’s i-phone video of the events and a 7-11 surveillance camera provided sufficient evidence to ensure that Mr. Buehler was not indicted by the grand jury on the spit-related felony charge.  And, the video evidence was key in proving to a jury that Mr. Buehler did not disobey a lawful order to put his hands behind his back, since the officer didn’t have reasonable suspicion to believe Mr. Buehler had committed a crime.


In response to the charges, Mr. Buehler – a Westpoint graduate, Veteran (tours in Kosovo and Iraq), MBA from Stanford, and MA from Harvard – formed a grassroots activist organization called Peaceful Streets Project (“PSP”).  PSP encourages citizens to film the police in order to discourage police misconduct and provide exculpatory evidence for people wrongfully charged with crimes, like Mr. Buehler.  Mr. Buehler and other PSP members began going on ‘cop-watches’ to film the police in public, in 2012. 


In response to this activism, APD formulated a policy that played out as follows:


1)   Officers were told they could not tell people not to film, but

2)   They could tell people to move their location based on geographical markers, and

3)   After the officers had twice requested that the person move to a different geographical location, the officers could then arrest the person for interfering under Texas Penal Code 38.15.


APD officers would engage in a game-of-gotchya with Mr. Buehler wherein the officers would give Mr. Buehler arbitrary orders to move his location, and then arrest him when he either challenged their authority to tell him to move, or if he didn’t move fast enough to suit them.


Before his arrest on September 21, 2012, Mr. Buehler sought to film a DWI stop.  He stood on a public sidewalk.  The police officer handling the DWI investigation told Mr. Buehler to “move back.”  Mr. Buehler asked “how far?”  The officer responded, “until I tell you to stop.”  Another APD officer arrived at the scene, and ordered Mr. Buehler to move forward – toward the DWI investigation.  When Mr. Buehler told the officer that he was leaving, the officer arrested him.  Mr. Buehler was charged under Austin Municipal Code Section 9-4-51 – for failing to obey an order of a peace officer.  This absurd exchange was captured on video.  The case was dismissed.  He beat the rap, but not the ride.


Police officers who do not want to be filmed will use HB 1035 to justify ordering filmers to move to places where they cannot capture video.  And, if the filmer has a healthy sense of his own constitutional rights, officers will not hesitate to arrest filmers that refuse arbitrary orders to move.  There is no significant governmental interest in codifying a game-of-gotchya when it was clearly stated that this Bill does not create new law, but is instead intended to educate the public and law enforcement. 


Police officers are trained on constitutional principals and swear to uphold the constitution.  Most people who film the police have a healthy sense of their own constitutional rights.  Given the reality of police training in constitutional rights, and the public’s increasing desire to film the police, there is no compelling reason to make HB 1035 law.


That said, however, the following proposed language for 38.15(d) would send a clear message that we have the right to film police in a public place:


It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted solely of exercising First Amendment rights, including but not limited to speech or filming in a public place.



Thank you again for being open to comments and suggestions.  Please contact me if you have any questions.





                                                      Millie L. Thompson



[1] Carey v. Brown, 447 U.S. 455, 461-62 (1980). 

[2] de la O v. Hous. Auth. Of El Paso, 417 F.3d 495, 503 (5th Cir. 2005)(citing Perry Ed. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 45 (1983)).

[3] Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).

[4] See Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001).

[5] Frisby v. Schultz, 487 U.S. 474, 480 (1988).

[6] McCullen v. Coakley, 134 S.Ct. 2518, 2529 (2014).

[7] McCullen, 134 S.Ct. at 2529.

[8] Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

[9] Kolender v. Lawson, 461 U.S. 352, 357 (1983).

[10] See Frye v. Kansas City Mo. Police Dep’t, 375 F.3d 785, 791 (8th Cir. 2004).

[11] See Smith v. Goguen, 415 U.S. 566, 573-576 (1974)(“the most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine – the requirement that a legislature establish minimal guidelines to govern law enforcement”).

[12] See, e.g., Norwell v. City of Cincinnati, 414 U.S. 14, 16 (1973) (per curiam) (reversing disorderly conduct conviction because “one is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer”); Swartz v. Insogna, 704 F.3d 105, 110–11 (2d Cir. 2013) (finding no probable cause for disorderly conduct arrest because statements and gestures critical of police were protected speech); Wilson v. Kittoe, 337 F.3d 392, 401 (4th Cir. 2003) (finding no probable cause to arrest for obstruction when plaintiff spoke to officer and observed arrest of another from his own driveway because “inconvenience cannot, taken alone, justify an arrest under the Obstruction statute”); Payne v. Pauley, 337 F.3d 767, 777 (7th Cir. 2003) (finding that arguing with a police officer, even if done loudly using profane or offensive language, will not alone constitute disorderly conduct); Johnson v. Campbell, 332 F.3d 199, 213 (3d Cir. 2003) (finding no probable cause to arrest when words to officer were protected by First Amendment, even if unpleasant and insulting); Enlow v. Tishomingo County, 962 F.2d 501 (5th Cir. 1992) (finding no probable cause to arrest for interference with raid when plaintiff asked officer two questions and took a photograph of the raid in progress); Gainor v. Rogers, 973 F.2d 1379, 1387–88 (8th Cir. 1992) (finding arrest not supported by probable cause when plaintiff, “merely exercising his First Amendment rights,” expressed a religious message and challenged police officers’ actions).

[13] Brendlin v. California, 127 S.Ct. 2400, 2405 (2007) (citations and quotation marks omitted).

[14] Id. (citations and quotation marks omitted).

[15] See Brendlin, supra

[16] St. George v. State, 237 S.W.3d 720, 726 (Tex. Crim. App. 2007).

[17] Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997).

[18] Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).

[19] Johnson v. Minneapolis Park and Recreation Board, 729 F.3d 1094, 110 (8th Cir. 2013) (citation omitted).

[20] Brown v. Entm’t Merch. Ass’n, __U.S.__, 131 S.Ct. 2729, 2740 (2011).

[21] Carey v. Brown, 447 U.S. 455, 461 (1980).

[22] Id. at 463 (citation omitted).

Austin Police Department's Civil Rights Violation Costs $1 Million

By: Jermaine Hopkins & Millie Thompson


Carlos Chacon sued the City of Austin and Austin Police Department Officers Eric Copeland and Russell Rose for their use of excessive force against him.  His attorney, Broadus Spivey, filed the case in Federal Court, pursuant to 42 U.S. Code § 1983 - Civil action for deprivation of rights.  On Thursday evening, March 5, 2015, a jury of 12 decided the case in Chacon’s favor.  Chacon was awarded $1,000,000.00 in damages.  We discuss the case, the legal process, important details of the trial, and how APD's brass inconsistently treats dishonesty by police officers.


Facts of the Case:

Chacon sued based on damages sustained at the hands of APD Officers Rose and Copeland.  Chacon called 9-1-1 as a victim of a crime, informing the 9-1-1 operator that he paid for a massage but the woman offered sex, and when Chacon went to leave, a man began kicking the motel room door, yelling at him.  After he made the first 9-1-1 call, the same man threatened to kill him and reached into his shorts as if grabbing a gun.  Chacon entered his silver BMW, began driving around, and again called 9-1-1 to report the threat. 


En route to the motel, the 9-1-1 dispatcher twice explained to the responding APD officers that the suspect was a ‘black male’ in a white shirt, black hat and black shorts, with a gun, and that the complainant (victim) – Chacon – was driving his silver BMW.  There was no record of any other 9-1-1 calls being placed regarding this incident, other than Chacon’s two.


When the officers arrived at the motel, Officer Rose inexplicably asked an African American male matching the description of the suspect if he had called about a gun.  The male immediately replied in the negative, but instead said that there was a drunk guy driving around in a silver BMW.  The African American male claimed that he himself had called 9-1-1, about the drunk guy. 


Chacon approached, driving his vehicle, and Officer Rose immediately drew his gun and pointed it at Chacon – the victim who had called 9-1-1.  Rose didn’t identify himself as a police officer.  Rose ordered Chacon to show his hands, and Chacon responded: “I don’t have a gun, he’s the one.”  Officer Copeland joined Rose and then drew his gun, pointing it at Chacon.  When the officers yanked Chacon from the vehicle, Chacon tried to again calmly explain that he was not the one with the gun.  Rose and Copeland wrestled Chacon to the ground, giving conflicting commands, and Copeland punched him in the face twice, causing a cut above Chacon’s eye.  Then, Officer Rose tased Chacon.  Chacon was arrested for resisting arrest.  That resisting arrest case was dismissed.

You can find the dash-cam video/audio here.



Procedural History of the Federal Civil Rights Case:

Officers Rose and Copeland tried to have the case tossed on qualified immunity grounds, arguing that they were immune from suit because they were acting properly in their official capacity as police officers.  On May 21, 2013, Federal District Judge Sparks issued a ruling denying the City of Austin’s Motion for Summary Judgment in Chacon’s lawsuit.  In his ruling, Judge Sparks pointed out Rose’s “obvious post-hoc explanation for his behavior, and is completely discredited by his actions as captured by his own dashboard camera…  The Court therefore disregards Officer Rose's explanation, and instead defers to the video evidence, which clearly contradicts his affidavit's claim.”  Rose, a white officer, to-date has not been terminated or disciplined for dishonesty.


On March 2 and 3, 2015, Chief Acevedo was provided with information regarding the dishonest and rehearsed testimony given under oath by Rose, Copeland, and Smith.  To date, Chief Acevedo has not responded to that information.


Both the district court and Fifth Circuit Court of Appeals refused to dismiss Chacon’s case against the two officers.  In the officers’ interlocutory appeal (meaning that they didn’t have to wait for a jury to hear the case before they could appeal on the issue of immunity from suit), the Fifth Circuit had to decide whether there was a factual dispute regarding whether the police violated an actual constitutional right, considering 1) the severity of the crime at issue, 2) whether Chacon posed an immediate threat to the safety of the officers or others, and 3) whether Chacon actively resisted arrested or attempted to flee. 


The Fifth Circuit reasoned that the video of the assault did not entirely confirm the officers’ version of events, nor did it entirely refute Chacon’s version.  Notably, Chacon was given contradictory commands during the assault, including to “not move,” but “get on the ground,” but “stop moving,” but “turn over.” 


The Fifth Circuit concluded that there was a fact issue that a jury must decide: “Even if some action by Chacon demonstrated resistance, the fact question found by the district court remains: whether, even considering his possible resistance, shoving Chacon to the ground while he attempted to explain himself, punching him in the head while he was on the ground, or shooting him with a Taser, constituted excessive force.   Police are entitled only to measured and ascending responses to the actions of a suspect, calibrated to physical and verbal resistance shown by that suspect.” 


And, so, the case against Officers Rose and Copeland proceeded to the jury.


The Trial – The Jury Had to Decide Who Was Credible:

The dash-cam video was played numerous times and dissected in the courtroom.  Despite the efforts of the Assistant City Attorney to discredit him, Carlos Chacon came across as a very credible witness as he described the events taking place on that traumatic night and how those experiences have adversely impacted his life.  He informed the jury that he reached out to Chief Acevedo, who did not respond to his letter.  He also denied consuming any alcoholic beverages that painful evening.


Rose testified that he did not hear the information provided by the dispatcher, while the dash-cam audio clearly captured the dispatcher twice describing the suspect and victim. 


Copeland testified that he detected the strong odor of an alcoholic beverage emitting from Chacon, but Chacon was never charged with Public Intoxication or Driving While Intoxicated.  Additionally, Chacon’s hospital records failed to confirm Copeland’s alcohol allegation, which was also refuted by Rose’s prior testimony.  Nevertheless, according to his police report, Rose claimed to suspect that Chacon was under the influence of alcohol/drugs. 


Rose and Copeland’s supervisor, Sgt. Robert Smith, also testified that he detected a strong odor of an alcoholic beverage emitting from Chacon, but he was never as close to Chacon as Rose, nor was he able to explain why the medical personnel at the emergency room did not report any signs of intoxication in Chacon’s medical records.  However, Smith stated that it did not mean anything to him.  Chacon’s attorney Broadus Spivey asked Smith about why Chacon was not charged with Driving While Intoxicated or Public Intoxication; Smith responded, “I think we don’t just arbitrarily stack charges on someone.”  But, when later asked why he recommended that Rose or Copeland conduct sobriety tests on Chacon, who was already under arrest for the alleged Resisting Search offense, Smith replied “to see if there were any other charges we could put on him.” (Authors’ Note: Rest assured, despite what the officers claimed, APD never lets a DWI go!)


Leading up to trial, Judge Sparks questioned Sgt. Smith about why the Austin Police Department failed to investigate the circumstances that prompted Mr. Chacon to call the police.  However, contrary to his self-described job duties, Smith could only say “I don’t know.”  As Copeland and Rose’s supervisor, it was his job to know.


Chacon’s legal team called expert witness Dr. George Kirkham, a criminologist out of Florida.  Despite Dr. Kirkham’s extensive experience that far exceeded that of Rose and Copeland’s expert witness, William Terryl, the Assistant City Attorney objected to Dr. Kirkham being allowed to testify.  Judge Sparks quickly overruled the objection and decisively affirmed “he’s an expert.” 


Dr. Kirkham testified, based upon his expert opinion, that the actions of Rose and Copeland were contrary to standard police practices and procedures, and that their force used was objectively unreasonable.


Had the jury believed the officers’ version of events, they would have held in the officers’ favor and Chacon would have lost the lawsuit.  Instead, they found one million reasons to hold in favor of Carlos Chacon.


The jury found Russell Rose liable for $1,000,000.00, not Eric Copeland.  Rose was the officer who immediately pulled his gun on Chacon, and tased him.  Copeland punched Chacon in the face twice.  Copeland made the news one year after the Chacon assault when he shot and killed a man.  


Chief Art Acevedo’s Inconsistent Handling of Dishonesty Among his “Troops:”

On October 28, 2013, Officer Blayne Williams, an African American APD officer who had in the past filed a charge of discrimination against Chief Acevedo, was terminated based solely upon Chief Acevedo’s subjective opinion that Williams was dishonest.  Chief Acevedo failed to indicate in Williams’ disciplinary memo exactly how Williams was dishonest.  Even an Internal Affairs investigator testified at Williams’s arbitration that he did not know what specific statements Chief Acevedo believed were dishonest.   Officer Blayne Williams fought against his termination, and an arbitrator determined that Williams was not dishonest and that he should not have been terminated. 


One particular APD Officer Gallenkamp has developed a reputation for dishonesty amongst the Travis County Criminal Defense Bar.  Ask your friendly criminal defense attorney about the reasons.  Nevertheless, Copeland and Rose are still in uniform, having never been disciplined.


Media Presence Lacking at Chacon’s Trial:

The press did not cover Carlos Chacon’s trial, and brief news reports about the trial were only released after the jury awarded $1,000,00.00 in damages.  Typically, when a case involves a matter of public concern, especially on a hot-button issue like police abuse, the press shows up during the trial testimony.  Often, one will see photographers outside the courthouse, waiting to click shots of the parties.  Not so in Carlos Chacon’s trial. 


Austin Police Department’s Police Chief Art Acevedo is well known in Austin for his mastery of the media.  In 2010, he made it clear that he wanted to stay in Austin in order to finish projects he started and “he want[ed] to finish working with the media.” 

 Philip Perea posted this on his Facebook, and for that, Acevedo had him fired.

Philip Perea posted this on his Facebook, and for that, Acevedo had him fired.

Acevedo has developed such a rapport with the media that news stations would rather fire their own than to upset him.  Reporter Philip Perea committed suicide in January of this year after he was fired for posting an unflattering picture of Art Acevedo on facebook.  Acevedo had responded to the assault of a jogging jaywalker by saying that “In other cities there’s cops who are actually committing sexual assaults on duty, so I thank God that this is what passes for controversy in Austin, Texas.”  The picture Perea posted on facebook made Acevedo look like a buffoon.  When Acevedo took issue, Perea was fired.  Acevedo's quote turned into a meme with the phrase "at least we didn't rape you."


APD lost more credibility when two of Acevedo’s officers joked about rape, captured by their dash-cam equipment: “Go ahead. Call the cops. They can’t unrape you.’ 


Acevedo lost still more credibility when he suggested that young women should not defend themselves with firearms, but should go ahead, be raped, get counseling, and get over it.


Acevedo does more than exercise some control over how the media reports on him, he has outright banned people from his twitter and facebook.  These social media accounts are considered public fora, and yet, Acevedo handles them as if they were his private accounts.  We’ll report more about Acevedo’s handling of social media in a subsequent blog.


Congratulations to Chacon:

In the meantime, hats-off to Carlos Chacon for being fearless and going after APD.  It is frightening taking on an entity with that much power and weaponry.  Hats-off to Chacon’s legal team including Broadus Spivey for fighting the good fight and winning.


City of Austin Mayor Steve Adler, are you paying attention to how much APD is costing Austin?  Austin City Counsel, are you?  While this assault may not have happened on y’all’s watch, you’re on-watch now.  Will you protect your citizens? 


Jermaine Hopkins is an Iraqi War veteran, and 14-year police officer, whose own tribulations with APD are detailed here.

Millie Thompson is a criminal defense attorney, whose office is located in Austin, Texas.


Antonio Buehler - Trying a Capital Class C Misdemeanor

Yesterday evening, I was privileged to speak about our October 23, 2014 municipal court trial at a Calvert Inns of Court meeting.  If you are curious about Antonio's first Class C trial, or the facts that led to my client being indicted by a grand jury for a Class C misdemeanor, you should visit  

It seems striking that an attorney would be asked to speak to other lawyers about a Class C misdemeanor.  What struck me more, however, was how positive those lawyers were.  One in particular wondered why prosecutors are not charging police officers with perjury when those officers verifiably lie.  

We are gearing up to try more of Antonio's misdemeanor cases.  When lawyers put this much effort into a misdemeanor, we jokingly call it a 'Capital Misdemeanor,' meaning that its been exaggerated to the level of a Capital Murder.  

Wish us luck.