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hris Perri Law is a criminal defense law firm located in Austin, Texas.

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Chris' Blog

The blog of Chris Perri Law, written by Chris Perri and Shannon Perri. Read the latest in exciting cases where justice is served.

Filtering by Category: Constitutional Law

New Study Exposes How Texas Criminal Justice System Values Finality Over Accuracy

Chris Perri

 Photograph by  Stephanie Ezcurra

Photograph by Stephanie Ezcurra

In my post-conviction practice, I often feel like my clients don’t get a fair shake. Evidentiary hearings are rare, and the trial judge always seems to sign off on the State’s proposed findings of fact, which are critical when appealing an adverse ruling.

A recent study of Harris County death-penalty cases by Jim Marcus and the UT Capital Punishment Clinic confirms what I’ve suspected from experience: our criminal justice system values finality over accuracy. Judges are literally executing people without affording them the opportunity to fully present their claims. And the judges are pretty open about their bias, as they “rubber stamped” the State’s version of events in 95% of the cases studied. In fact, 34 out of the 40 judges adopted every proposed finding of fact presented by the State – that’s an astounding figure because it’s impossible for the State to be right 100% of the time.

In my practice, I’ve encountered the same difficulties in getting a hearing for my clients. Judges simply don’t want to re-open old cases, even though wrongful convictions are common. At a writ conference that I attended a few years ago, one judge described the general judicial attitude towards writs: they don’t like them. Why? Because writs open up old matters on their dockets, and judges don’t like seeing those cause numbers from a decade ago popping up. Also, due to the large number of pro se writs being filed by incarcerated inmates, the judges figure that if they start hearing every claim raised on every writ, they won’t be able to devote sufficient time to their trial docket.

For these reasons, it’s vital to have an experienced attorney present the writ in a manner that grabs the judge’s attention and shows the judge that the conviction is a gross injustice in light of the new evidence presented in the writ. However, even with a quality attorney, judges far too often deny evidentiary hearings and resolve the contested issues on the basis of affidavits. This deprives attorneys of the ability to cross-examine adverse witnesses, which is one of the only meaningful ways of uncovering the truth.

The new study is a groundbreaking because it provides the first concrete evidence of the widespread judicial bias against writ applicants in Texas’ criminal justice system, effectively denying them procedural due process. This issue can be litigated on appeal to the federal system when a defendant’s writ application is unfairly denied by Texas courts, and the study can serve as proof supporting a claim that Texas’ writ system violates the constitutional right to due process. 

All this said, awareness is the first step to change. This study brings to light an important injustice that we as a society must face. If our justice system values truth, then it must provide everyone an opportunity for a full and fair hearing. Liberty is too important for shortcuts.

If you do find yourself or a loved one wrongfully convicted, call Chris Perri Law at (512) 917-4378 for a free consultation to learn about your options. If you are my client, I will do everything in my power to zealously fight for your rights amidst a flawed system.

The Dirtiest Little Secret of Texas: Our Civil Commitment Law for Sex Offenders Raises Double Jeopardy Concerns

Chris Perri

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Recently, I read this article in the Fort Worth Star Telegram about Texas’ civil commitment law with respect to sex offenders and was left shocked.

While the article mainly concerns a technical change in the law regarding venue for civil commitment trials, hidden towards the end is the unveiling of Texas’ dirty little secret: Since 1998, more than 350 individuals have been civilly committed to a sex-offender treatment facility in Littlefield, Texas, following their completion of lengthy prison sentences. None have been released upon successful completion of the program, and nearly half were sent back to prison for violations of the treatment program’s rules.

For example, a defendant who is convicted of a sex offense might serve 25 years in prison. As his release date approaches, he discovers that the State of Texas wants him to remain incarcerated after the completion of his long sentence. As a result, a new “civil commitment” trial occurs in which the State seeks to prove that he “has a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence.” This seems like a pretty easy burden to prove since the defendant has previously been convicted of a sex offense.

While this procedure might smack of double jeopardy, Tarrant County prosecutor Bill Vassar defends it by arguing: “During his 25 year imprisonment, [the defendant] never had sex offender treatment from a licensed professional. The jury’s verdict ensures that he will get the treatment he needs, and guarantees the citizens of Texas that he will be monitored 24 hours a day.”

This argument exposes two fundamental problems. First, any prosecutor should be ashamed of a criminal justice system that sends a sex offender to a penitentiary that fails to provide any treatment to that individual prior to release. Right there, Mr. Vassar has unwittingly indicted our entire prison system for ineptitude. Second, Mr. Vassar’s argument that the defendant “will get the treatment he needs” from the Littlefield treatment facility is disproved by the evidence that no one has ever been rehabilitated in the program’s 18 years of operation. Leave it to the government to equate success with this zero percent rehabilitation rate.

I sympathize with victims of sex offenses, and I do believe that offenders need to be punished. However, the proper forum for vindicating victims’ rights and punishing offenders is the criminal process. Once an offender has served his/her sentence, our Double Jeopardy Clause forbids further punishment for that offense. In effect, Texas’ civil commitment law allows Texas to circumvent the Constitution by imprisoning a person a second time for the crime. To continually operate such a “treatment” facility for 18 years despite its zero-percent success rate seems to be a brazen misuse of government resources. Moreover, Texans should be offended by the government’s attempt to disguise the civil commitment facility’s true purpose as rehabilitation. This current system serves no one: not the criminal, not the victim, and certainly not the taxpayer. Littlefield is the island where we send the undesirables to never be heard from again.  

Let’s start with some honesty, and then engage in a legitimate debate about whether the Constitution forbids this type of institution as an unconstitutional subsequent punishment.

For more information on this civil commitment trend for sex offenders, check out the Stateman’s recent write-up here.  

Suppression Victories Preserve Our Constitutional Rights

Chris Perri

Chris Perri Law is proud to share that we’ve won three suppression hearings so far this year.

For those who may not know, a suppression hearing is held when a defendant believes that evidence was obtained in violation of a constitutional right. If the court agrees with the defendant, then the evidence is “suppressed,” which bars the prosecution from using this evidence at trial.

For example, in our recent blog post, we discussed a Supreme Court case where officers seized drugs from a vehicle following a positive canine alert during a traffic stop. This issue was litigated at a suppression hearing, where the defendant won the argument that the police officer violated his Fourth Amendment rights.

In many cases, winning a suppression hearing directly leads to the prosecutor dismissing the case due to insufficient evidence. As a result, the public often misunderstands suppression as a legal loophole that allows criminals to avoid accountability for their actions. Chris Perri doesn’t see it that simply.

 “Suppression hearings are my favorite part of practicing law,” Perri says. “The fact that my clients were caught with incriminating evidence isn’t the whole issue. Instead, we’re focusing on whether the police followed the rules. And these aren’t just any rules – these are the foundational principles that glue our country together. If judges allowed evidence to be introduced at trials despite being illegally obtained, then what’s the point of the Constitution? It’s the real possibility of suppression that keeps the police in line when they investigate illegal activity. It’s a part of our system’s checks and balances of power.“

Chris Perri Law Suppression Win #1

Earlier this year a client faced felony cocaine distribution charges after a police officer entered his house without a warrant. According to the cop, who was at the defendant’s front door in order to investigate an anonymous tip, he witnessed our client flushing the cocaine down the toilet, and he entered in order to prevent the imminent destruction of evidence (an exception to the general requirement that a warrant be obtained prior to entering someone’s home). However, the blinds covering the windows were drawn, and the cop had to awkwardly peer up through a crack in them in order to observe the inside of the home. Chris Perri Law successfully argued that while Supreme Court precedent recognizes an implicit license for anyone to come to the front door to knock and briefly wait for an answer (example: Girl Scouts selling cookies), no one—not even a police officer—is invited to violate the homeowner’s right to privacy by bending down to peep through a crack in drawn blinds. In fact, if you saw someone on their knees under someone’s window, trying to peer in through the blinds, you’d probably call the cops. The reasonable Travis County district judge ordered that the evidence be suppressed.

Chris Perri Law Suppression Win #2

At our next suppression hearing, a client faced a DWI charge and sought to suppress the blood evidence that was obtained with a search warrant following his arrest. Because the blood analyst reported a BAC of nearly twice the legal limit, combating this evidence was critical to our case. Our goal was to demonstrate that the officer lacked probable cause to arrest our client (a Fourth Amendment violation), so any evidence derived from an unlawful arrest is subject to suppression. By cross-examining the officer with the video of the stop and presenting evidence that undermined the officer’s credibility, Chris Perri Law convinced the court to suppress the blood results. Subsequently, the prosecution dismissed the charge due to insufficient evidence.

Chris Perri Law Suppression Win #3

Finally, in a pending felony case, Chris Perri Law suppressed key evidence a police officer obtained before reading the client his Miranda rights. Details will have to wait for a future blog post so that we do not compromise the resolution of this case.

Chris Perri Law is proud to practice criminal defense in Travis County, where constitutional principles reign supreme. If you or someone you know has a potential suppression issue, along with any other criminal defense matter, contact us today at (512)917-4378.

Recent Supreme Court Decision Protects 4th Amendment Rights During Traffic Stops

Chris Perri

Last week, in Rodriguez v. United States, the Supreme Court clarified that police officers may not prolong a traffic stop in order to conduct a dog sniff on a vehicle, unless there is reasonable suspicion to believe that the occupants are engaged in criminal activity.

In this case, the defendant was pulled over in Nebraska for illegally driving on the shoulder of the highway. About 20 minutes later, the police officer issued a warning ticket for the traffic infraction. However, the defendant was not yet “free to leave.” The police officer instructed the defendant to exit his vehicle and stand in front of the patrol car while they waited for another police unit to arrive. About seven more minutes elapsed before the arrival of the backup unit. At this point, the officer led a drug-detecting dog around the defendant’s vehicle. The dog alerted to the presence of drugs, and a subsequent search of the defendant’s vehicle revealed a large quantity of methamphetamine. The defendant was convicted and sentenced to five years in federal prison.

On appeal, the Government argued that waiting a mere seven minutes for the drug dog to sniff the outside of defendant’s vehicle constituted a de minimus (minimal) intrusion on the defendant’s Fourth Amendment rights, meaning that the intrusion was so minor that it was constitutionally permissible. Fortunately, our Supreme Court rejected this argument. The Court noted that certain intrusions, such as asking a person to step outside the vehicle during a lawful traffic stop, are “negligibly burdensome precautions” that allow an officer to complete the traffic stop “mission” safely. “On-scene investigation into other crimes, however, detours from that mission,” wrote Justice Ginsburg, who authored the majority opinion.

An officer may not prolong a traffic stop in order to conduct a dog sniff unless facts are developed during the traffic stop that support reasonable suspicion of drug activity. For example, if an officer smells drugs during the stop or notes a contradiction between the driver’s and passenger’s statements regarding their travel itinerary, the officer might have reasonable suspicion to prolong the stop in order to investigate drug activity. However, an officer can’t conduct a dog sniff on a car based on a mere hunch that’s not supported by actual observations of suspicious activity.

Even if the officer had conducted the dog sniff prior to issuing the warning ticket, the result would be the same: “The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff ‘prolongs’ – i.e., adds time to – ‘the stop.’”

This recent case enhances Chris Perri Law’s arsenal for attacking unlawful searches at suppression hearings. We’ve begun 2015 with three victories on suppression issues, and we’ll continue to fight to protect our clients’ constitutional rights.

Recent U.S. Supreme Court Ruling Gives Cops Even More Leeway, But Chris Perri Law Will Strike Back

Chris Perri

Last month, the United States Supreme Court issued a surprising opinion that’s created waves of concern in the criminal defense circle. In Heien v. North Carolina, a North Carolina police officer noticed that one of the brake lights on the defendant’s vehicle was not working, so the officer pulled the defendant over believing that having a broken brake light was a violation of North Carolina law. A subsequent search of the defendant’s vehicle revealed cocaine, resulting in his arrest. The defendant attempted to suppress the evidence on the basis that he didn’t commit a traffic violation. The North Carolina courts reviewed the relevant traffic statute, and they determined that as long as one brake light is working, no crime has occurred.

Since the defendant didn’t commit a traffic violation, the stop was illegal, and the evidence of the cocaine should be suppressed. Seems simple, right? According to an 8-1 majority of the Supreme Court, that doesn’t end the inquiry, as courts must examine whether the officer’s mistaken belief about the law was reasonable. Here, the North Carolina law was somewhat ambiguous because another statute mandated that all “rear lamps” be functioning, and it’s not unreasonable to interpret a brake light as a type of rear lamp. Thus, even though the officer’s interpretation of the law was incorrect, this interpretation was reasonable at the time of the stop.

The Supreme Court’s analysis is problematic. Aren’t police officers supposed to know the law? And if they don’t know the law, how can anyone deem this lack of knowledge reasonable when the officers are trained experts on what’s illegal? If a medical doctor performing an appendectomy mistakenly removes your spleen instead of your appendix, we call that malpractice, and there’s no wiggle room for the doctor to argue that the mistake was reasonable. Apparently, cops get much more leeway.

Many defense attorneys are concerned that Heien might be a slippery slope. Will prosecutors now defend all unlawful stops on the basis that the officer’s mistaken belief about the law was reasonable at the time of the stop?

I say bring it on. I plan to argue that Heien applies to only a tiny set of scenarios: those in which the law is ambiguous and there’s no case precedent that clarifies this ambiguity. In Texas, most of the traffic laws are pretty clear cut. For example, it’s not a crime to swerve within your own lane as long as your car doesn’t cross into another lane. If an officer stops someone for swerving but the defense proves that the car never crossed into another lane, the prosecution won’t be able to argue that the officer reasonably believed that swerving within one’s own lane is against the law. That’s because, unlike the North Carolina law at issue in Heien, there’s no ambiguity in the law in my hypothetical example.

Still, I anticipate that prosecutors will attempt to use Heien as a tool to validate otherwise unlawful stops. As a result, it’s important to retain an experienced, knowledgeable defense attorney to persuade the courts that Heien doesn’t apply.

Court of Appeals Grants Chris Perri Law Oral Argument on Felony Case

Chris Perri

The Corpus Christi Court of Appeals has granted me the opportunity to present formal Oral Arguments on a felony DWI case in which my client was convicted and sentenced to twenty-five years in prison. At trial, during which I was not yet his lawyer, the main evidence of my client’s intoxication came from a warrantless blood draw, revealing that his BAC was over the legal limit. Just a few months after my client’s trial, the U.S. Supreme Court ruled that it was unconstitutional for an individual’s blood to be drawn during a DWI arrest without a warrant—even if it was the individual’s third DWI. At the time of my client’s arrest, however, Texas law allowed the police to draw a person’s blood without a warrant if that person had two or more prior DWI convictions. However, due to the fact that the Supreme Court’s ruling occurred while my client’s case was pending appeal, I’m arguing that this ruling should apply to his case so that his conviction is overturned and he can be retried without the tainted evidence. The interesting issue on appeal is that because the trial attorneys did not object to the admission of the blood evidence, no error was preserved. Usually, objections are necessary to present an appellate issue because appellate courts require that the trial judge had an opportunity to make a ruling. I plan to fiercely argue that even though the error was not preserved, it represents such a fundamental miscarriage of justice that the appellate court should still reverse the conviction. 

Do you really have the right to remain silent?

Chris Perri

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In the wake of the recent Supreme Court ruling in Salinas vs. Texas, Chris Perri Law fears that the high court has whittled away the right to remain silent.

In Salinas, the Court ruled that the prosecution can use your pre-arrest silence against you at trial, thus watering down the essence of the Fifth Amendment’s protections against self-incrimination. In Salinas’ case, prior to being arrested, he voluntarily provided the police with information regarding a murder. However, when authorities asked if Salinas’ gun would match the murder weapon, Salinas refused to answer, under the assumption that he was exercising his Fifth Amendment right not to incriminate himself. However, at his trial, the prosecution used his choice to remain silent as damning evidence of his guilt.

The Supreme Court reviewed this ruling, and although it was a close call, the Court ruled that the conviction should be upheld, stating that if individuals want to invoke the Fifth Amendment’s protection, they “must claim it”.  Although the Fifth Amendment clearly states that no one can be forced to be a witness against him or herself in a criminal matter, the Court’s ruling means that the prosecution is free to use the defendant’s pre-arrest silence as evidence of guilt.

Chris Perri Law fears that in light of the Supreme Court’s recent ruling, the Fifth Amendment’s protection against self-incrimination has been vastly diluted.  Basically, to claim the rights of this fundamental law, individuals must explicitly inform the authorities that they are invoking their Fifth Amendment right to silence upon being questioned by law enforcement. Chris Perri worries that this requirement especially hurts less educated individuals, who may not be aware of this new ruling. “It creates a further class divide in our system,” Chris Perri says.

In order to maintain your Fifth Amendment right against self-incrimination, Chris Perri Law advises you to explicitly state that you’re invoking your Fifth Amendment right when the situation calls for it.  Otherwise, your silence could come back to bite you.

Chris Perri Law convinces State of Texas to dismiss case against man facing felony drug charge

Chris Perri

Chris Perri Law proves to be successful in the face of injustice yet again. Police searched Chris’ client’s home in North Texas and arrested the client for a state-jail -felony amount of marijuana (between four ounces and five pounds). The client faced up to two years in prison as well as the stigma of a felony conviction.  Within six weeks of hiring Chris Perri Law, Chris was able to convince the prosecutor to dismiss the entire case. The client will now be able to get the arrest expunged from his record next year.

Utilizing his exceptional skill in navigating case law, Chris pointed out to the prosecutor that the information the police used to obtain the search warrant was gathered illegally. Thieves burglarized the client’s home and stole the client’s marijuana. The police caught the burglars and asked them how they acquired so much marijuana. The burglars then became informants and pointed the finger on Chris’ client, a victim of burglary.

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However, case law states that information obtained through illegal activity cannot be used to obtain a warrant. Just like police must gather information through legal channels, so must anyone else if it will be upheld in court.

As a public citizen, I feel thankful that the courts dismissed the case because it shows our system values justice and sets a standard that illegally gathering information to hurt someone else is unacceptable.  It is shocking to think that without the help of Chris Perri Law, this man who was involved in no violent activity or crime of moral turpitude, could have been a convicted felon, never allowed to vote again.

Court says driving near Sixth Street at night is suspicious

Chris Perri

As most people probably know, if you’re driving home from the Sixth Street area late at night, you’re under suspicion from Austin’s DWI task force, which camps out at the heavily trafficked roads that lead away from the bar district. And now, based on a recent Court of Criminal Appeals ruling in Foster v. State, you can get pulled over even if you haven’t committed a traffic offense.

As a criminal defense attorney, one of my first questions of a client charged with DWI is: “Why did the cop pull you over?” Until recently, the answer almost always involved some type traffic offense, such as speeding, running a red light, expired inspection or registration, taillight out, etc. However, check out the facts of Foster:

A police officer was stopped at a red light in the right lane of West Sixth Street. Foster’s truck drove up very close to the back of the officer’s vehicle, and then the truck made a “revving” sound. The officer also described the truck as lurching forward, possibly to try to turn into the lane to the left of the officer. The officer then initiated a traffic stop of Foster’s truck despite the fact that Foster hadn’t violated any traffic laws. Foster then failed sobriety tests and was arrested for DWI.

The Court of Criminal Appeals found that the stop was validly supported by reasonable suspicion, which is the constitutional standard for such investigatory detentions. (Note: police officers need “probable cause” to arrest a person, but only “reasonable suspicion” to temporarily detain someone in order to investigate criminal activity). According to the court, the officer validly took into account the time of day and location in determining whether there was reasonable suspicion to detain Foster.

Here, the officer testified that based on his training and experience, people leaving the Sixth Street bar district late at night are likely to be intoxicated. When this circumstance is combined with Foster’s “erratic driving,” the Court found that was enough to pull him over. On the other hand, if Foster’s driving behavior had occurred on a residential street during the light of day, an officer would probably not have been able to validly pull him over because such driving behavior, in isolation, doesn’t amount to reasonable suspicion of a crime.

Of course, Foster’s an idiot for driving so aggressively in an area known to be patrolled by cops late at night. But until now, most attorneys would’ve agreed that he couldn’t be pulled over unless he committed a traffic offense. Now, that’s changed. And if you drive near Sixth Street at night, you’re already under suspicion; if you do anything that’s conceivably “erratic,” you’ll likely be the subject of a DWI investigation.

The best advice is to take a taxi or designate a sober driver in order to avoid an accident or police contact.