Monday, June 30, 2008

Texas GPA Law Will Affect UT Admissions

Last month, I wrote about two high school seniors who were suing over the admission practices of the University of Texas system. The young women were concerned that race and ethnicity can be a factor in determining whether or not they would be sitting in the student section and screaming, “Hook ‘Em, Horns!” Now, thanks to new legislation from the Texas state legislature, even those who previously assumed their grade point averages were in the top 10% and therefore guaranteed admission may be fighting for a spot in the next freshman class as well.

A Texas law that passed in 2007 will require that all public high schools use the same method for calculating grade point averages, as there is currently a wide variance in how this figure is determined. Should grades in Band and Strength Training be given the same weight as Calculus and Biology? Some students have concurrent enrollment at a community college – should grades from that additional institution be counted? High school counselors advise their students based on what would likely result in the best possible GPA at their specific school, and now that may all change.

The most significant point of contention is the fight over when the changes will take effect. Will students who are currently preparing for their junior or senior years see their GPAs adjusted after the fact to meet the new criteria? Or would this violate Texas’ constitutional prohibition of retroactive laws? The Texas Higher Education Commissioner, Raymund Paredes, wrote to the following to the Texas Attorney General –

"To the extent that the method 'rewards or penalizes' students for course selection decisions made in their freshman, sophomore or junior years before the effective date (of the change in the law), we are very concerned that it will result in legal challenges from adversely affected students and parents.”

For now, parents, students and counselors are in a holding pattern as they wait for a final decision on how grades will be calculated. We know from countless other instances of controversial decisions involving education, that new policies will not be installed quietly. Mothers and fathers will go to battle when their child’s educational future is at stake. In the final analysis, it is important that the legal decisions are made with as much attention to fairness and academic quality as possible.

Sunday, June 29, 2008

Texas Supreme Court Overturns Case on Religious Grounds

Chuck Lindell at Austin Legal reports that the Texas Supreme Court overturened a case on religious grounds:

The Texas Supreme Court today tossed out a $188,000 judgment against
members of a Pentecostal church who physically restrained a teen-ager they
feared had come under demonic influence.

Laura Schubert claimed rough handling during the 1996 rituals — involving the “laying on” of hands and intensive prayer — left her disabled by post-traumatic stress disorder. Jurors found that Schubert, then 17, was falsely imprisoned and assaulted by members of the Pleasant Glade Assembly of God church in suburban Fort Worth.

But the state Supreme Court, in a 6-3 decision, said Schubert’s lawsuit violated First Amendment protections on religious expression.

Friday, June 27, 2008

Texas Teenager Charged with Murder of Newborn Son

Another sad chapter in Texas criminal law was written yesterday in the case of a newborn boy who was found dead in a toilet at a junior high school. For those not already familiar with the case, the baby was submerged in the water and had paper stuffed down his throat. The fourteen-year-old mother of the baby has been charged with capital murder. That sentence alone explains the many tragedies that are a part of this story.

The prosecution has not yet decided if the Baytown, TX girl—her age is undisclosed due to her age— will be charged as a juvenile or an adult. If she is convicted as an adult, she faces life in prison without the possibility for parole. And under Texas law, she is too young to be considered for the death penalty. If the state decides that she should not stand trial as an adult, she instead could find herself in juvenile detention center and then state prison for forty years. If this teenager really did kill her child, she will, at the very least, spend the majority of her life behind bars.

Baytown police Captain Roger Clifford said, "We have had enough evidence to determine that this action was done intentionally and knowingly. That means beyond a reasonable doubt in our mind and in mind of the district attorney's office and in mind of the medical examiner's office, that this was not an accident."

The girl’s attorney, Gerald Yoakum, insists that she did not even know that she was pregnant and that she only saw “blood and goo” from the placenta and umbilical cord when in the bathroom. We have heard this defense before and, if true, it speaks to a frightening lack of education and/or perception in some of our young people. It also counters the mental state of “intent” which is an element of the crime that the prosecutor will have to prove. However, not knowing she was pregnant leading up to that moment certainly does not justify the actions that followed. The investigation has revealed that the baby cried at least once before he died.

It is difficult to imagine the circumstances that led the teenaged girl to her current situation. As her attorney said, "Please remember that this is a 14-year-old child who has experienced a tragic event." This is undoubtedly true, but it remains to be seen if the legal court (or the court of public opinion) places its sympathies with the girl.

Dallas 'Catch A Predator' Pedophile Prosecutor Lawsuit Settles

Esteemed Brother Rice High School alumnus Chris Hansen's investigative television show To Catch A Predator was a staple of NBC's prime time television lineup for numerous years. The show fed off American television viewers' penchant for justice and sex by combining the two elements into wholefully entertaining one-hour and two-hour segments of Hansen duping child molestors into responding to online invitations from underage minors on social networking websites and chat rooms. In a typical segment, the subject appears at the house - sometimes bearing gifts of alcohol, stuffed animals and prophylactics - and is greeted by an equally excited minor, who is usually an undercover law enforcement officer or actor. The subject proceeds to engage the "child" in conversation - sometimes get naked - and then - BOOM - out comes Hansen with any one of a number of trademark phrases. The entire encounter made for truly amazing television and generally resulted in the molestor being tackled - or in some instances - tazed by police. It was all great until someone killed themself.

To the dismay of many viewers, the show was placed on hold after suburban Dallas prosecutor Louis William "Bill" Conradt, Jr. committed suicide during an encounter with Hansen. The episode was unique in that rather than setting up a "sting house", the show went to Conradt's home to tape as the Kaufman County SWAT team busted through his front door. The SWAT team purportedly cornered Conradt in a room where he shot himself in the head with a Browning .380 handgun. The episode aired on February 20, 2007.

Conradt's sister, Patricia Conradt, thereafter sued NBC Universal, Inc. for intentional infliction of emotional distress, negligence, unjust enrichment, and various Federal civil rights claims. The suit sought $105 million dollars in punitive and compensatory damages. The suit was later amended to include a cause of action under the Racketeer Influenced and Corrupt Organizations Act (RICO) which was promptly dismissed by the Court. In December, NBC attempted to have Contradt's intentional infliction of emotional distress claim dismissed as not rising to the level of "extreme and dangerous" as required under Texas law. The Court denied NBC's 12(b)(6) motion in February setting the stage for pretrial settlement negotiations. Earlier this week, an announcement was made that the case had been settled for an undisclosed amount.

It should be noted, that while child rapists certainly deserve to be ostracized and hated, even the Supreme Court has found death to be an inappropriate sentence.

Thursday, June 26, 2008

Supreme Court Decision Affects Texas Law

Under our system of federalism, the individual states are permitted to create their own laws and extend rights beyond those granted by the government in Washington, D.C. However, the autonomy of a state reaches its end once a determination has been made that the U.S. Constitution has been violated. In a highly anticipated ruling, the Supreme Court decided yesterday that the death penalty cannot be used as punishment for child rape if that crime does not result in death.

The Court’s ruling came out of a Louisiana case in which the death penalty was imposed on a man convicted of raping his eight-year-old stepdaughter. What is the specific application to our state? The 5-4 decision will affect Jessica’s Law, which was passed by the Texas state legislature last year. Jessica’s Law was so named in honor of Jessica Lunsford, the nine-year-old Florida girl who was killed by a sex offender.

The Texas law allowed for the death penalty or life in prison for those who are repeat offenders of sexual assault against a child. The Supreme Court decided that the death penalty for a crime in which no one was killed, or the intent to kill did not exist, is cruel and unusual punishment and therefore violates the Eighth Amendment. Texas courts will still have the option of sentencing such criminals to life in prison without the possibility of parole.

The argument has been made that the Supreme Court decision will increase the number of convictions of child rapists. As explained by Karen Amacker with the Texas Association Against Sexual Assault, "The reality is that child victims and their families don't want to be responsible for sending a grandparent, cousin or long-time family friend to death row." Only time will show if the removal of the death penalty option will give more children the courage to come forward as victims of this hideous crime.

Supreme Court-ification - Part I

Yesterday, the U.S. Supreme Court issued its opinion in Kennedy v. Louisiana (No. 07-343; argued April 16, 2008), a Louisiana criminal case in which a convicted child rapist challenged the constitutionality of a Louisiana law which made the death penalty available in cases where a defendant is found guilty of raping a child under the age of 12.

The defendant's challenge was based on Coker v. Georgia, 433 U.S. 584 (1977), a Supreme Court case where the Court previously ruled that the prohibition of the 8th Amendment of the U.S. Constitution against "cruel and unusual punishment" prohibited the death penalty in cases involving rape only because "the punishment imposed is [a] grossly disproportionate and excessive punishment for the crime of rape." The Court relied upon its previous decision in Gregg v. Georgia, 428 U.S. 153 (1976), stating, "[T]he Eighth Amendment bars not only those punishments that are 'barbaric,' but also those that are 'excessive' in relation to the crime committed. ... [A] punishment is 'excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment, and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground. Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent." Coker, citing Gregg.

Hmmm. I don't know about you, but words like "disproportionate, "excessive," and "barbaric" are, by their very nature, subjective. How is a judge supposed to adjudicate such a case without being subjective, without using his own opinions? Further, what is 'disproportionate,' 'excessive' or 'barbaric' to one person is likely to be much less so to another person. What do the terms "measurable contribution" or "acceptable goal of punishment" mean? Isn't "punishment," by its very nature, supposed to be the "imposition of pain [or] suffering."? Let's be honest. The Supreme Court's "test" for conduct violative of the 8th Amendment is, in the end, no real "test," at least in the objective sense of the word.

More importantly, however, the Court's decision is is flawed in that it relies upon the status quo to define how the Bill of Rights is to be interpreted. Sounds okay. The problem is that the Bill of Rights was designed to serve as a protection of minority opinions against majority opinion - the Bill of Rights was designed to protect the rights of the minority from the status quo. This is not the only area where the Supreme Court relies on majority opinion to determine what the Bill of Rights will and will not protect. In Chaplinsky v. New Hampshire (315 U.S. 568) for instance, the Court held that "[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." In Griswold v. Connecticut (381 U.S. 489), the Court relied on a real or imagined sense of public morality to determine that a "right to privacy" exists in Constitution, even though no such a right is never explicitly or implicitly referred to in either the Constitution or the Bill of Rights.

In Kennedy v. Louisiana, the Supreme Court got it wrong for a couple of reasons. First, the Supreme Court's jurisprudence invovling the interpretation of the term "cruel and unusual punishment" is, by its very nature, subjective. Don't act like you are not being subjective when, in fact, your are. Although the Bill of Rights contains a number of terms that are, by their very nature, subjective, subjectivity is an area in which the legislative branch is much more competent to determine when a given punishment is "cruel" or "unusual." Second, the prohibition against "cruel and unusual punishment" comes from the 8th Amendment to the Bill of Rights. The Bill of Rights was intended to serve as a protection against public opinion. The Supreme Court should not be relying on public opinion in order to determine how to protect against public opinion.

Wednesday, June 25, 2008

Austin Woman Hits Police Officer … and His Horse!

Do you ladies ever get so frustrated with a situation that you decide the only way to release your tension is to reach for a high-heeled shoe and smack a horse? No? Well, then, your coping techniques must differ from Ms. Corsha Beasley. When mounted officers tried to clear a crowd around 2:00 a.m. on Tuesday morning, the 21-year-old Austin woman refused to move and struck a police horse named Dusty with a shoe. Beasley did not end her abuse with this unlucky member of the equine family. When the officer who was riding Dusty bent down to protect his horse, Beasley attacked him with the same shoe.

I guess I can understand Corsha Beasley’s anger at the police. After all, they were trying to clear the crowd in order to respond to a 911 call. Beasley was rightfully livid that a potential emergency was interfering with her freedom to congregate in the middle of the street! What if there had been a fire in the area? I hate to imagine the damage she would have inflicted on a Dalmatian riding along with the responding fire truck!

All kidding aside, Beasley faces some serious consequences following the altercation. According to the Austin American-Statesman, she is now facing charges of interference with a police service animal, which is a second-degree felony, and assault on a police officer, a third-degree felony. She is being held with bail set at $30,000. If convicted, she could face up to twenty years in State prison.

At our offices in Austin, Houston and San Antonio, Bertolino LLP has attorneys who specialize in issues of criminal defense. If you’ve been charged with a crime, involving shoe-to-horse contact or not, please contact us … we can provide the aggressive, quality legal representation that you need.

Tuesday, June 24, 2008

Petition Circulating for Open Carry of Guns in Texas

If you ask people what comes to their mind when they think about some stereotypical representations of Texas, you may hear comments about open spaces, oil rigs, tumbleweed and cowboys (and when you think of the Cowboys, you may now think of Jessica Simpson … but that is irrelevant here). There is a sense that, despite large cities and unbearable traffic, some of the Wild West still exists here. Therefore, it may be a surprise that Texas is one of only six states that does not allow its citizens to carry their handguns in plain view.

There is a petition circulating online that already has 3500 signatures asking Governor Rick Perry and the Texas legislature to remove the firearms restriction from the books. The request is supported by the Texas Citizens Defense League and is receiving publicity from Open Carry, a website that is dedicated to the promotion of open-carry laws. The co-founder of the site, John Pierce, believes that the freedom to have a holstered firearm outside of one’s clothing is a fundamental right protected by our Constitution. I am sure that famous Texas cowboys of days passed, such as Jim Bowie and Davy Crocket, would agree.

Of course, there is also organized opposition to any further expansion of gun ownership in the state of Texas. The Houston-based Texans for Gun Safety asserts that the state is already friendly enough to those to wish to carry handguns. The petition is also being fought by some members of law enforcement, as they believe more prominent displays of guns will only lead to greater tension and perhaps some quick-trigger reactions to a perceived threat.

While the majority of legal scholars concur that citizens are granted the right to bear arms to some extent by the Second Amendment, there continues to be heated debate over how far the ability of an individual has to carry and use his gun should go. If the state government decides to allow the citizens of Texas to wear their firearms publicly, it certainly will not be breaking any new ground. But, it will provide more ammunition (intentional pun) for those who believe that Second Amendment freedoms are broad and should be granted with as few restrictions as possible.

Monday, June 23, 2008

FLDS Member Requests New Attorney

Most attorneys will tell you of experiences with court-appointed clients who abruptly demand new representation, whether warranted or not. However, it is not standard practice for these attorney-client disputes to get played out in front of the national media.

As the legal complexities surrounding the families at the FLDS ranch continue to unfold, a new subplot (OK, maybe a minor scene that would get cut in the final edit) is developing. Teresa Jeffs, the daughter of FLDS head honcho Warren Jeffs has informed the court that she no longer wishes to employ the services of her appointed attorney.

Ms. Jeffs is upset that her attorney, Natalie Malonis, has issued a restraining order against FLDS member and church spokesman Willie Jessop (pictured above). Malonis asserts that Mr. Jessop has been intimidating and coercing Teresa Jeffs as she prepares to give her testimony concerning possible abuse at the ranch and that she simply wants to protect the girl. Ms. Jeffs is steadfast in her statements that no illegal activity took place in the ranch and wrote in a letter to her attorney -- "Natalie, quit all your lying about everything … let me get a different lawyer."

Teresa Jeffs is only sixteen years old, so there may be a legitimate concern that she is not mature enough to make such an important legal decision. Judge Barbara Walther, who has gained personal notoriety through this case, will soon determine if the girl’s wish to release her attorney will be granted.

Is Ms. Jeffs being controlled by Willie Jessop, or is she correct in claiming that her attorney’s issuance of a restraining order was unwarranted? I’m not sure if it is possible to get a definitive answer. However, one point is clear -- anytime that minors are involved in legal matters, extra sensitivity is needed. At Bertolino LLP, we have attorneys who specialize in the unique circumstances involved with family law. Please let us know if we can be of service to you.

Sunday, June 22, 2008

Dallas Police Resume Bait Car Program

Bait cars, equipped with cameras and tracking equipment, are used by law enforcement around the country to purportedly help deter auto thefts.

Earlier this month, the theft of a Dallas police decoy car resulted in the death of an innocent elderly driver. The tragic accident happened when the stolen theft decoy car being monitored by police crashed into another car as officers tried to disable it. Dallas police temporarily stopped the bait car program while police investigated why the vehicle could not be disabled.

While many expected Dallas police to curb the program indefinitely, in a shocking move Dallas police reimplemented the program last week. The department alleges that it has resolved all problems by tweaking their auto theft bait cars to be disabled more quickly.

Friday, June 20, 2008

Man Arrested in Miami for Pumping Parties

The wonderful people of Miami have endless options for weekend entertainment. Perhaps live music and dancing sounds like fun for some. Others may prefer a seat in the bleachers at a Marlins game (well, that option is not so popular). There’s always a relaxing walk on the beach waiting for those wanting a quiet night. If you don’t find any of those options appealing, how about having silicone illegally injected into your buttocks? Now, that would be something to discuss around the water cooler on Monday morning.

Anthony Donnell Solomon, of Northwest Miami-Dade, has been accused of practicing medicine illegally. Women gather at private homes or hotel rooms for “pumping parties” and invite Mr. Solomon as the guest of honor. He would then give them shots of silicone to increase the size of their buttocks.

The parties came to an end (pardon the pun) when state and county investigators set up a fake “pumping party” and Solomon agreed to increase to shoot some silicone into an undercover detective. The Florida Department of Health verified that Solomon did not have the legal clearance necessary to perform this curious task. The charge of unlicensed practice of a healthcare profession is a third-degree felony. Solomon now faces up to five years in prison and/or a $5000 fine.

I wonder if Mr. Solomon knew the potential penalty that awaited him if he was caught leading these festive cosmetic gatherings. After all, there actually are quite a few recent trials involving this exact crime. The participants at these functions need to know that the health risks are quite real.

At Bertolino LLP, we have attorneys who specialize in issues surrounding medical licensing and malpractice. If you are, unlike Anthony Solomon, a legitimate professional and you find your license threatened, please contact us and discuss how we can provide experienced representation for you.

Thursday, June 19, 2008

Austin City Council Considering Revision to Curfew

Earlier this week, I wrote about a proposed curfew in Pembroke Pines, Florida. Now, the state capital of Texas is reviewing its policies concerning juveniles and late-night socializing. Yesterday’s Austin American-Statesman printed an article about a change being discussed by the City Council to standardize curfew times across Austin.

The curfew law passed in 1990 established different curfews depending on the part of the city in which you found yourself. The curfew goes into effect at 10:00 pm in the downtown area. The curfew in the southeastern part of the city starts at 11:00 p.m. Finally, curfew in the rest of the city starts at 11:30 p.m. That is a confusing set of boundaries for adults, let alone teenagers to follow! If the City Council approves the change, the curfew would be 11:00 p.m. to 6:00 a.m. across the city.

As Assistant Police Chief David Carter said. "We want to simplify [the curfew policies] and remove some of those opportunities for misunderstanding."

The percentage of all arrests that involved juveniles fell from 12% to 7% since the original curfew law was passed in 1990. This statistic certainly is a compelling argument to make the curfew even more sensible and easy to enforce.

Despite the success of the curfew, the Constitutional concerns over freedom of speech and assembly are still being raised on blogs and in newspaper commentaries by those who oppose any curfew at all. It should be noted that exceptions are made in the Austin city ordinance law for juveniles who are working, attending religious services or just traveling through the Austin area. And, the president of the Central Texas chapter of the ACLU supports a nighttime curfew. So, I cannot imagine we will see a substantial disagreement concerning the overall future of the Austin curfew. The only question to be answered is – will the curfew remain staggered or become uniform? The attorneys in our Austin office with teenagers will be waiting to see!

Wednesday, June 18, 2008

Teenage Criminals in Fort Bend Show Rookie Mistake

If there was a legitimate high school internship through which students could learn how to rob a house effectively, I know there are at least two teenaged boys in Fort Bend who would have earned a failing grade. The young men, whose names are being withheld due to the fact that both are only sixteen, broke into a home yesterday using a large rock. They got scared when spotted by a neighbor and fled the scene. What’s the problem (well, besides the actual commission of a crime)? The boys left a backpack and cell phone behind.

The police have not revealed if there was any identifying information in the backpack, but it turns out that such helpful details were not needed. The boys called police a short time after running away to report a missing backpack and cell phone. Obviously, the investigators realized that they were dealing with more than a coincidence. And, they probably also figured that they were not going to be confronting professionals in the burglary business.

Chief Deputy Craig Brady said it best with his comment that, "The one who called and reported his backpack stolen but knew it was in that house, probably isn't the most intelligent juvenile in the area. He didn't show very good judgment."

It is almost comforting to read a story about teenagers who are obviously such novice criminals, since the news seems to introduce us to young people who are already too familiar with making poor decisions (some of whom I have written about on this blog). These boys have been released to the custody of their parents and are now waiting for the next steps by the Fort Bend County District Attorney’s Office. I hope they both accept the consequences of their actions and then decide to stay on the right side of the law in the future.

Tuesday, June 17, 2008

Houston Man Faces Grand Jury for Shooting Neighborhood Criminals

resident Joe Horn made national headlines last year when he shot two burglars who had just run out of a neighbor’s home with stolen cash and jewelry. He was hailed by many as a hero for taking the power back from the criminals and defending his neighborhood. Others decried the rash act of violence against two men who were posing no immediate threat to the life of Mr. Horn.

A Harris County grand jury is hearing evidence this week to determine whether Horn should be indicted on criminal charges or have the case dismissed. Mr. Horn is a 61-year-old retired grandfather and, according to his attorney,

"Was it a mistake from a legal standpoint? No. But a mistake in his life? Yes, because it's affected him terribly. And if he had it to do over again, he would stay inside. I don't think anybody can really appreciate the magnitude that something like this has on a person's personality."

Homeowners certainly have the right to protect themselves if an intruder has entered their home. In Texas, this right has been established by what is known as the “Castle Doctrine”. Passed in 2007, this law states that people have no duty to retreat from an intruder in his or her home, workplace or vehicle before using deadly force. However, the right to act just applies to an occupied property or vehicle, not to the assumption that criminals may be coming to your place next or that you wish to protect a neighbor. It will be interesting to see what the grand jury decides in the case of Mr. Horn, as a dismissal of charges may clear the way for a more expansive interpretation of self-defense.

At Bertolino LLP, we have attorneys at our offices in Houston, Austin and San Antonio who can assist you with criminal defense needs or a wide array of other legal issues. If you need a lawyer, please contact us and we will talk about how we can help you.

Monday, June 16, 2008

Florida Town Considering Curfew for Teenagers

One of the greatest rites of passage for any teenager is the day that he or she is handed a set of car keys for the first time. My son, who is fifteen years old, is actually anticipating that day. A car means freedom – an evening with friends and no watchful eyes of mom or dad to ruin the fun. However, some of those pesky adults in Pembroke Pines, Florida are threatening to limit the ability of the city’s young people to roam. The commissioners are considering a curfew that would require people under the age of sixteen to be inside after 11:00 pm on weeknights and midnight on weekends.

A primary purpose of the ordinance would be to curb the drag racing that has become popular along the main highway. Right now, the police often arrive to break up this dangerous activity, but can do little beyond telling the teenagers to leave.

The success of the proposed law is questionable. After all, Pembroke Pines already has a curfew law on the books that dates back to 1969 and it is rarely enforced. Also, the courts have generally ruled against the constitutionality of curfews. As explained by attorney Keith Poliakoff, the Florida Supreme Court determined in the case of State of Florida v. J.P. (2004) that “restraining children from freely walking on the streets or other public places when no emergency exists is incompatible with the freedoms of speech, association, peaceful assembly and religion secured to all citizens in the Florida Constitution.''

The city attorney for Pembroke Pines, Sam Goren, insists that the new curfew laws will be written in a way that does not violate previous court rulings. Exceptions will be made for teens who have an emergency, are working or have written permission from their parents.

The new curfew proposals will be brought before the city commissioners this Wednesday evening. Eventually, we may see if these restrictions pass the legal muster that the previous laws did not.

Saturday, June 14, 2008

Red Sox Star David Ortiz Naturalizes, Becomes U.S. Citizen

On Wednesday, Dominican-born Boston Red Sox slugger David "Big Papi" Ortiz became an official U.S. citizen by participating in a citizenship ceremony held at the John F. Kennedy Library in Dorchester, Massachusetts.

U.S. District Judge Nathaniel Gorton administered the oath of citizenship and spoke briefly of our nation's national anthem, its importance, and - of course - Fenway Park.

To become a naturalized United States citizen, one must be at least eighteen years of age and have had a status of a legal permanent resident in the United States for five years less 90 days before they apply. If the legal permanent resident was outside of the U.S. for a continuous period of 6 months or more during those sixty months, they are disqualified from naturalizing. The individual must also be a “person of good moral character," and must pass a test on U.S. history and government.

Bertolino LLP's immigration attorneys are able to assist individuals in Florida and Texas looking to naturalize and welcome your telephone calls and e-mail.

Friday, June 13, 2008

Beauty School Duo Admits to Miami-Dade Burglaries

The two young ladies creep towards your front door, armed with hair dryers and curling irons. You happen to see them as you peek through your window and you think, “Wow! Did I win one of those surprise makeovers for TV?” Unfortunately, the intentions of the approaching women are anything but glamorous.

Perhaps that exact scene never played out for Hanny Ramirez-Ferrer and Stephanie Botifoll, but it’s an interesting scenario to imagine. The two teenagers, who met each other at the Beauty Schools of America's West Miami-Dade campus, appeared in Miami-Dade Circuit Court yesterday. They have been charged with breaking into homes in West Miami-Dade and stealing more than $20,000 worth of jewelry, cameras and computers. The pair has confessed to five burglaries.

The primary motivation for these burglaries appears to be money, as the women admitted to selling the stolen items on the street. They planned to avoid confrontations with the homeowners, it seems, as the break-ins were all done during the day when homes were empty.

It is unfortunate that these two young women chose to engage in criminal behavior just as they were starting an education in their preferred career track. Neither one had a criminal history in Florida. And, the attorney for Ramirez-Ferrer stated that the girls have “incredible parents on both sides … nice families.” Perhaps during the trial we will learn if it was boredom, peer pressure, desperation or some other factor that led to their poor decisions.

The attorneys at Bertolino LLP bring a lot of experience to the specific issues surrounding criminal defense. If you find yourself in need of such assistance, please do not hesitate to give us a call. Whether you are a beauty school student who has admitted to a crime, or someone who has been accused falsely of wrongdoing, we can provide the representation that is you deserve.

Thursday, June 12, 2008

Judge in FLDS Case Requires Police Protection

More than once on this blog, I have written about the removal and subsequent return of the children who are a part of the FLDS ranch in Texas. And, as I have mentioned before, this well-publicized battle between religious freedom and the duty of the state to protect children is far from over. More chapters, both inside and out of the courtroom, are still to be written. Any doubt that emotions aren’t still running high despite the decision of the Texas Supreme Court to reunite the FLDS families? Yesterday’s Houston Chronicle published a story stating that the judge who first ordered that the sect’s children be separated from their parents is now facing threats.

Police have been assigned to the home of Judge Barbara Walther and given photos of sixteen men and women who have been deemed possible threats. The basis for the concern stems from a website run by a Florida man named Bill Medvecky. Although not a member of the FLDS church, he is sympathetic to their cause and donated money to their legal battle. Medvecky posted Judge Walther’s home address and phone number and asserted that someone should pay her home a visit.

Rod Parker, an attorney for the FLDS, believes that law enforcement is creating a threat where none exists. Medvecky has no official ties to the sect and the FLDS members cannot be held responsible for what an individual chooses to write or say. In a newspaper interview, Parker said,

"Have they ever seen an act of intimidation or violence against law enforcement from the FLDS community at all, ever? Before they start spreading those kinds of rumors, they ought to be able to ID an example of them ever doing that in the past."

Of course, proper steps should be taken whenever a life is threatened. A judge should not fear for her safety simply because she is interpreting the law as her education and experience see it. However, unless law enforcement has some evidence that they do not wish to share with the public (which is entirely possible), the case for any members of FLDS to be viewed as a threat seems a bit thin.

Wednesday, June 11, 2008

Miami Woman Faces Jail Time for Bigamy

It is not uncommon for a little girl to dream about her wedding day. She has the dress designed, the first dance selected and may even decide which of her favorite playground friends will be standing by her side years before she ever meets the groom. I wonder if Eunice Rodriguez enjoyed those types of daydreams when she when a child. She loves getting married so much that she’s done it four times in her forty-six years. The only problem … she didn’t divorce one husband before moving on to the next. Now, Mrs. Rodriguez is facing jail time for multiple counts of bigamy.

Rodriguez is a Cuban native who lives in Miami as a legal U.S. resident. She has made a career in recent years of marrying undocumented migrant workers for money to help them earn legal status in our country. And, she is only one member in a family business of bigamy. Rodriguez’s brother and sister are currently on the lam to avoid arrest on a combined seventeen marriages. Her daughter was arrested last year on nine counts of bigamy (appears that she was more successful at the practice than her mom) and has pleaded not guilty.

The investigation of Eunice Rodriguez was led by Immigration and Customs Enforcement (ICE) and had the cooperation of the Miami-Dade State’s Attorney Office. Following the arrest of Mrs. Rodriguez earlier this week, one of the ICE agents commented, “ICE and its law enforcement partners will not tolerate the exploitation of our country's immigration system.” As the saying goes, sometimes love (of your spouse or his payment for sham marriages services) just isn’t enough.

At the Austin, Houston, and San Antonio offices of Bertolino LLP, we have attorneys who specialize in issues of immigration law. You may not find yourself involved in a wedding to keep someone in the country, but there are certainly many other serious situations related to immigration that require professionalism and experience. Please contact us if we can help you.

Tuesday, June 10, 2008

Texas Teen Accused of Hiring Hit Man to Kill Fellow Student

Yesterday I wrote about a teenaged girl in Miami who was the victim of a horrific crime. Today I have some thoughts to share on a Pasadena, TX (a suburb of Houston) boy who finds himself on the other side of the law. Seventeen-year-old Thomas Moses Ramirez faces life in prison, and the crime he committed was all in the name of love.

Ramirez, a student at Sam Houston High School, offered $150 and some drugs to an undercover officer in exchange for the killing of a girl he thought was interfering with his relationship with a former girlfriend. The job apparently was not to end there, as Ramirez indicated there would be another assignment once the first killing was successfully done. The young man has been charged with solicitation of capital murder, which is a first-degree felony. He made his first court appearance yesterday, and he is currently being held in the Harris County jail on $100,000 bond.

Fortunately, Ramirez did not get a trustworthy referral when searching for a hit man and law enforcement was able to intercept his deadly plan (a fellow teenager first turned down the appealing offer). The fact remains, however, that this teenager believed that a classmate’s life was worth no more than $150 and some Xanax. We have to question what factors in his family, or our society, led Ramirez to this sad conclusion. And how prevalent is this lack of consideration for life among our young people?

Ramirez’s father offers one possible explanation, at least in the instance of his son:

"It just tore him up — teenage puppy love," he said. "This is his first true love. He's got a broken heart. He's not thinking with his head. He's thinking with his heart. He said some bad things. He made some bad choices."

Heartbroken teenagers should stick with the time-honored traditions of playing the same sad song over and over again or ripping in half the photographs of a former love. They certainly should stop short of committing a felony that may cost them a life outside of prison bars. The belief that Ramirez made “some bad choices” is an understatement, and the legal consequences of these choices will become known as this case moves forward.

Monday, June 9, 2008

Miami Mother Sues DCF Over Death of Daughter

Last week on this blog, I wrote about the overworked Miami-Dade Public Defenders’ Office and the potential consequences for those who are indigent and have been accused of a crime. Over the weekend, the Miami Herald published an article about another government office that has had well-publicized problems. The mother of a fifteen-year-old North Miami girl is suing the Florida Department of Children and Families over the 2007 death of her daughter.

The teenager, Stephanie Dorismond, was killed after fleeing to the supposedly protective care of a man named Jean Loccident. Instead of taking care of the girl, Mr. Loccident smashed her skull with a toilet lid while the two were staying in a local hotel. Stephanie’s mother believes that DCF had more than enough warning signs to prevent this tragedy from ever happening.

The relationship between the Department of Children and Families and the Dorismond family reaches back over four years. The first contact came after Stephanie stole $10,000 from her mother’s boyfriend and received threats after not sharing the money equally among her classmates. Calls to DCF continued the following year when Stephanie received cuts and bruises to her hands and face from her mother, who was determined by DCF to be suffering from severe depression. The last contact occurred when Stephanie accused a male relative of molesting her and, as the lawsuit asserts, DCF did little to investigate the allegations.

Who should carry the blame in this horrific situation? Some would argue that Merline Dorismond has no place suing Department of Children and Families when she herself had a role in the abuse of her child. Others will say that DCF has the overriding responsibility to care for children when their parents prove incapable and therefore the mother had every right to expect better assistance. Wherever you choose to focus your anger, we all mourn the loss of a girl who seems to have been failed repeatedly by the caregivers in her life.

At Bertolino LLP, we have attorneys who provide the experience and professionalism to deal with sensitive cases such as the one described above. If you are struggling with any legal issue, please contact us and let’s find out how we can help.

Austin Water Restrictions Currently in Effect

Mandatory City of Austin water restrictions for residential customers went into effect on May 1st and will last through September 30th. The restrictions are part of the City's water use management ordinance (Chapter 6-4 of City Code) and require that all customers (commercial, multifamily residential) adhere to the watering schedule unless granted a variance.

Pursuant to the watering schedule, commercial and multi-family customers are permitted to outdoor water use on Tuesday and/or Friday. Residential customers with odd-numbered addresses are permitted to water on Wednesday and/or Saturday. Those with even-numbered addresses may may water on Thursday and/or Sunday.

Customers with sprinkler systems or other automatic irrigation systems may not water between the hours of 10 a.m. and 7 p.m. Customers wishing to water during these hours must use a hand-held hose or bucket.

Customers may request a variance from the outdoor watering schedule in limited situations, including new landscapes, large properties, athletic fields (i.e., dust abatement), and for health and safety reasons (i.e., fertilizer or pesticide applications).

The City could further tighten the restrictions if weather conditions get extremely dry during the summer. If further restrictions are implemented, announcements will be made through the local media and City websites.

Violations of the water use ordinance are Class C misdemeanors, with each instance punishable by a fine of $500. The City enforces the ordinance and encourages residents to report violations via an online reporting form.

To satisfy watering needs, the City encourages residents to purchase rainbarrels through its rainbarrel sales program. Austin Water Utility customers may purchase up to four rainbarrels per month from Austin Water Conservation at a discounted price of $60 per barrel. Rainbarrels distributed through the Water Conservation program hold 75 gallons and are made of sturdy dark green polyethylene. They are 3' tall and roughly 27" at the widest point. Rainbarrels come with a debris screen and outflow hose, as well as an overflow tube.

Saturday, June 7, 2008

Former UT Running Back Cedric Benson Arrested in Austin... Again

Former University of Texas running back Cedric Benson was arrested in Austin last night and charged with driving while intoxicated (DUI/DWI) - a violation of Texas Penal Code § 49.04. His arrest comes one month after being charged with boating while intoxicated on Lake Travis and resisting arrest.

Benson was pulled over between 3 o'clock and 4 o'clock in the morning Saturday after allegedly running a red light at Fifth Street and Colorado Street - just blocks from downtown Austin's popular Sixth Street bar scene. Austin police purportedly smelled alcohol on Benson's breath and requested that he submit to a series of field sobriety tests, including a walk and turn test and a request to stand on one leg. The field officer believed Benson performed poorly on the field sobriety tests and requested that Benson submit to a breathalyzer. Benson wisely refused the test as well as subsequent requests for a blood sample. It also appears Benson immediately invoked his right to counsel and refused to speak to police without his Austin criminal defense attorney.

Benson's Austin criminal defense lawyer maintains that his client performed well on the field sobriety test and that the police lacked the probable cause required to arrest a person on suspicion of DUI/DWI. His criminal defense lawyer is also likely to attack the reasonable suspicion giving rise to the stop itself as Benson maintains that the light was yellow when he entered the intersection. Benson's criminal defense lawyer also claims that Benson was on his way home from a dinner at Kenichi where he had two or three drinks over the course of several hours. If true, one would presume Benson would have been sober at the time of his police encounter. The prosecution will likely challenge Benson's story and question his whereabout during the early Saturday morning hours as Kenichi's website list its Friday hours as 5:30 - 11:00 p.m.

The Chicago Bears, Benson's current NFL team, have publicly responded to his latest arrest with great dismay and frustration. Many sports bloggers are calling for the Bears to release Benson.

Those looking to follow the case can track upcoming hearings on the Travis County Criminal Courts docket here. The docket currently only reflects Benson's boating charge, but should be updated soon.

UPDATE: The Chicago Bears have officially released Cedric Benson.

Friday, June 6, 2008

Accused Valedictorian Sues to Participate in Graduation

Across the country this month, high school students and their families are filling auditoriums to celebrate that rite of passage that signifies an important bridge from childhood to being an adult – graduation. In most cases, the valedictorian of each class will give a speech reminding his or her peers of amusing class memories and sharing a few adolescent nuggets of wisdom for the years ahead. For one top student, the honor of speaking to his fellow graduates has been taken away following a computer hacking scandal, and he is fighting to get back his spot on the podium.

Khurrum Khan, the valedictorian at George Bush High School in Fort Bend, Texas, (suburb of Houston) is one of twenty-seven students being investigated for computer tampering with the purpose of altering grades. He faces a felony charge for his role for stealing computers at one district high school and tampering with computers at another school.

Khan filed a lawsuit in a Houston federal court earlier this week requesting a temporary restraining order and an emergency hearing. With the salutatorian currently preparing to leave his understudy role and make the big speech at graduation tomorrow, a quick hearing was granted and took place yesterday afternoon. U.S. District Judge David Hittner is supposed to rule on Khan’s request to participate in graduation by 2:00pm today.

The George Bush High School valedictorian maintains his innocence, and indicated that his high GPA made it unnecessary to alter his records or take chances with any other wrongdoing. He sees long-term repercussions if he is unable to graduate with the rest of his classmates. As reported in The Houston Chronicle,

"Preventing me from having the opportunity to establish my innocence or providing me with a hearing in order that I may do so brings dishonor upon me and my family," Khan wrote. "Preventing me from graduating with my class and giving the valedictory address will haunt me the rest of my life."

In records presented by the school district, Khan previously described his involvement in the scandal as “minimal.” Having minimal involvement is quite different from no participation at all, so which version is accurate? We should know how the judge views all the evidence by the end of the day.

Thursday, June 5, 2008

Broward PD Candidate Alex Arreaza Asks Station to Help Him Help You

In 1998, WSVN Channel 7 began running the Help Me Howard legal primer segments featuring incumbent Broward County Public Defender Howard Finkelstein (pictured above). Finkelstein will face opposition for the first time since taking office in 2004 after an uncontested bid for the position. In the August 26th Democratic primary, Finkelstein will have to defeat Alex Arreaza, a Davie criminal defense attorney. In the November general election, Finkelstein will battle Republican candidate and local criminal defense lawyer Gary Ostrow.

Arreaza - who tossed his hat into the ring about a month ago - wasted no time stirring the hornet's nest by sending a protest letter to WSVN general manager Robert Leider requesting equal air time as Finkelstein or that the station not air the Help Me Howard segments during the election cycle. WSVN denied Arreaza's request on the grounds that equal-time provisions do not apply to news broadcasts. WSVN maintains that Finkelstein's broadcast appearances have been part of regularly-scheduled bona-fide news programming and therefore fall outside the scope of equal-time provisions.

Arreaza followed-up his letter to WSVN with a letter to the Division of Elections of the Florida Department of State formally complaining of Finkelstein's appearances on Channel 7. Arreaza argues that Finkelstein's appearances on the news broadcasts violate Sections 27.51(3) (requiring public defender to serve on a full-time basis and prohibitting public defender from engaging in the private practice of law while holding office) and 216.262(1)(d) (prohibitting individual employed by a state agency from holding more than one employment during his normal working hours with the state) of the Florida Statutes. Areeaza complemented his letter with other correspondence to various State agencies regarding other malfeasance within the Finkelstein run office, including the inappropriate unauthorized use of staff and assistant public defenders.

As television stations, candidates, and in all likelihood - courts, sort out the above issues, one thing remains certain, Finkelstein's bid for reelection may need to let out a cry for help of its own.

'The Deposition of the Century?"

Senior U.S. District Judge James Nowlin made headlines in this morning's edition of the Austin American-Statesman with a very creative order regarding whether the deposition of a Wal Mart corporate representative would take place in Arkansas or Texas.

In rendering a decision the Court recognized the corporate representative from Wal Mart “would feel great humiliation by being forced to enter the home state of the University of Texas, where the legendary Texas Longhorns have wrought havoc on the Arkansas Razorbacks with an impressive 55-21 all-time series record.” The Court also noted that the Texan Plaintiffs have sound reason to fear traveling to Arkansa where many residents “are still seeking retribution for the ‘Game of the Century’ in which James Street and Darrell Royal stunned the Razorbacks.”

The Court, of course, was referring to the 1969 epic battle between the No. 1 Texas Longhorns and No. 2 Arkansas Razorbacks known as "The Big Shootout". The game took place on December 6th and would decide which unbeaten would go to the Cotton Bowl to battle for the national championship. A national stage was set for the game after the Michigan Wolverines railroaded the previously unbeaten Ohio State Buckeyes two weeks prior. It is estimated that half of the televisions in the country were tuned into the Texas-Arkansas game.

Texas won the game in the fourth quarter after a fourth-and-three deep forty-four yard play action pass from quarterback James Street to wide receiver Randy Peschel setup a late score. The Longhorns would go on to claim the national title by defeating Notre Dame in the Cotton Bowl.

The Court resolved the dispute by ordering that the deposition take place on the steps of the Texarkana Federal Building - "a neutral site, intended to avoid both humiliation and trepidation of retribution" - unless the parties could agree otherwise. Should the deposition occur in Texarkana, the Court further ordered each party "to remain on his or her respective side of the state line." A full copy of the Order can be appreciated here.

Miami-Dade Public Defender’s Office is Struggling to Cover Responsibilities

We all know from watching television programs like Law and Order that when being read his rights, an accused criminal always learns, “You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.” Amidst budget cuts and overworked attorneys, this constitutional guarantee is facing some challenges in the Miami-Dade area. How busy is the Miami-Dade Public Defender’s Office? Right now, 177 attorneys handle around 100,000 cases every year.

Public Defender Bennett Brummer said earlier this week that his office may begin to refuse some indigent clients who are referred to his office for representation. The cases likely to be denied would be those involving less-serious felonies, while first-degree murders and capital sexual batteries, as well as juvenile and misdemeanor cases, would still have guaranteed attorney coverage.

Brummer blames the problem on several factors. He places most of the fault at the doorstep of the state legislature, asserting that the politicians make grand statements about being tough on crime while cutting the budget necessary to meet such goals. Other problems include inexperienced lawyers, as the Public Defender’s office is often a first job out of law school, and a high turnover rate as attorneys leave for better-paying positions in private practice.

Since the right to counsel is protected by the Constitution, Brummer and his peers could face jail time if they refuse to accept cases. As University of Florida law professor Bob Dekle stated, ''The first showdown you're looking at is between the public defenders and the judge and how quick they can get out of jail after the judge puts them in jail for not accepting cases.'' With their resources stretched to the breaking point, Brummer believes his office may have no choice but to take such a dramatic step.

The right to an attorney who can insure your fair treatment through every step of the legal process is an essential component of our country’s judicial system. I hope that a solution can be found which provides counsel for the poorest among us while respecting the need to maintain a sensible workload for the attorneys who devote so much time and energy to the important role of public defender.

Wednesday, June 4, 2008

Texas Death Row Inmate Receives Stay of Execution

The State of Texas was prepared yesterday to execute its first prisoner in nine months, but two last-minute appeals filed by the Texas Defender Service has provided an extension to the life of Derrick Juan Sonnier.

Sonnier was scheduled to die back in February, but Texas extended that date while waiting for a Supreme Court of Texas’s decision on the legality of lethal injection, which developed out of two Kentucky cases. Some groups in that state asserted the idea that the Eighth Amendment of the Constitution protected prisoners from lethal injection, as the practice employed cruel and unusual punishment. Once the method of execution was held up as acceptable by our land’s highest court in April, Sonnier’s walk to the death chamber was rescheduled for June 3.

The two appeals that were granted for review in Sonnier’s case are as follows:

  1. The state recently made changes to the injection protocol, and these changes have not been reviewed by any court.

  1. The current protocol violates the constitutional protection against cruel and unusual punishment.

The time it will take to address these appeals has not been determined, so in the meantime Sonnier will once again wait to learn his fate.

Derrick Juan Sonnier was found guilty of stabbing a young mother and her son to death in 1991. Despite the incriminating factors of a wounded hand and bloody clothes in his apartment, Sonnier has maintained his innocence.

As I have written on this blog before, the death penalty is an issue that is steeped in emotion and it can claim strong arguments on both sides of the debate. It is imperative that we take every measure possible to insure that an innocent person never ends up on death row. But we also must be sensitive to the families of the victims who relive the tragedy each time a new appeal is filed.

The attorneys at Bertolino LLP understand that all participants in criminal cases have rights that deserve attention and respect. Give us the chance to work for you.

Tuesday, June 3, 2008

Pasadena Police Officers Found Not Guilty in Man’s Death

When police officers are accused of excessive force, the story is usually big news. Here in the Houston area, we have been following such a case for nearly a year and a verdict was reached in the criminal trial yesterday.

In Pasadena, Texas, two members of that city’s police department were determined to be not guilty by a jury in the death of Pedro Gonzales, Jr., who was in police custody when his life ended. As expected, the fate of the police officers came down to whose version of what happened that night was to be believed by those twelve men and women who were given the task of dissecting the facts.

Mr. Gonzales passed away in a holding facility after a late-night confrontation with Officers Jason Buckaloo and Christopher Jones. The county medical examiner testified that Gonzales died as a result of eight broken ribs that flooded blood into his chest. The defense presented a doctor who asserted that the death was the result of intense alcohol withdrawal, and that any force used was just done in response to erratic behavior by Mr. Gonzales.

We certainly want our law enforcement to take the measures necessary to protect the general public, while also knowing that the rights of each individual are being maintained. In these situations of “who do you believe,” we are reminded of the trust and responsibility we place in our police officers every day.

The family of Mr. Gonzales plans to file a wrongful death lawsuit in District Court. There is a lower burden of proof required for this civil action than for the criminal trial just completed, so we will have to wait and see if the outcome remains the same for these two men the second time around.

The law firm of Bertolino LLP has attorneys who specialize in the area of wrongful death lawsuits. If you are dealing with the painful loss of a loved one and you believe someone is at fault, please contact our Houston, Austin or San Antonio offices and allow us the opportunity to help you.