A Sig Sauer with a Rich Brocade

    Apologies to Michael Bracken for the Guns and Tacos style title. 

    As I've described during several of my blogs, I spend my day meeting my county's most recently arrested individuals. Before I can set a bond, fairness and curiosity require me to know a little bit about what the police say happened. How did this defendant end up in the back seat of the police car? 

    Readers of this blog likely know all of this. Most arrests are made after criminal behavior is witnessed or reported to a patrol officer. If the officer develops probable cause, a reasonable belief that an offense occurred, she makes an arrest and the defendant is taken to jail. I or another magistrate, are then tasked to evaluate the officer's statement of probable cause. The magistrate's review represents the first check in our system of due process. 

    Probable cause affidavits are usually pretty brief. A driver is stopped for speeding and weaving. The officer smells alcohol. Field sobriety tests are failed. A driving while intoxicated arrest gets made and the holiday party comes to an abrupt end. Usually, the reports I read are like that, a concise statement of the offense. They do the job. Occasionally, however, a report jumps out and grabs me with its misfire. Sometimes, the fault lies with the officer; other times the technology is to blame. A few examples:  

Forced Air: From where I sit, it appears that officers are susceptible to word trends. There are influencers, it seems, within the local departments. If one officer drops a word that sounds cool or smart, it could easily catch on with other patrol officers. We all like to be thought of as intelligent. An expansive lexicon demonstrates one's erudition. 

    That, I assume, explains a recent spate of "insufflation," as in "I recovered a bulbous glass pipe used for the insufflation of methamphetamine." The first time I read it, I had to look up insufflation in the dictionary. Mostly used as a medical term, insufflation is the act of blowing something into a body cavity. Meth pipes don't do the smoking for a user. Pipes are used for the inhalation of methamphetamine. 

Jlcoving, CC BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0>, via Wikimedia Commons

    More commonly, I think that police suffer from the same problem we all have when we shake our fists and curse autocorrect. Many departments rely on a voice-to-text reporting system. The software allows officers to dictate and call in reports. This system gets patrol officers back into the field more quickly. It does, however, occasionally result in errors. 

The Freedom Pipe: Like Otis on The Andy Griffith Show, I have a defendant or two, generally homeless, who will walk into the sheriff's department and refuse to leave. This typically happens when the weather is inclement. If they disobey a deputy's orders to depart, the deputy has little choice but to arrest the defendant for criminal trespass. (Readers might find a reason to fault our social safety net here, but that's not the point of this column.)

    I laugh when I read that the defendant "refused to leave the bong desk." In my visits to jail, I frequently pass the bond desk. Maybe this explains the employees' good mood (or the defendant's refusal to depart).

Chalk: I read the occasional family violence report where the defendant "chalked the victim." At first, I thought it was some hip street term, like, "the police will draw a chalk line around your dead body." Nope, a computer's mishearing of the word "choke." Choke sometimes also comes in as "chock." (Chocks are the blocks that go under car or airplane tires.) I don't know what that might mean in street slang. 

Bob Embleton / Crime Scene?, Riverside, Upton-Upon-Severn

Paper or Plastic: Last week, I read about a family violence victim who was struck on the bag of her head. The report did not detail whether the defendant also violated a local ban on single-use grocery sacks. 

Sham-munition: My personal favorite over the last few weeks. As I've related in an earlier blog, the most recent Texas legislature placed a high priority on handguns being holstered. Lots of people legally may carry handguns in lots of places in my state so long as they are toted in a holster. To make probable cause, the police officer must inform the judge whether the defendant properly secured his weapon. Consequently, I've read several reports recently about defendants being caught with upholstered weapons. Although I trust the officer meant that the gun wasn't legally strapped to the defendant's shoulder, hip, or ankle, I prefer the mental image of the chenille-wrapped Smith and Wesson. 

    This is my first blog for 2022. Let me close by wishing each of you a safe and healthy new year. May you find the write word for every situation and may your software never correct it to something else. 

    Until next time. 

Winter Tilt

     First, the science. 

    The winter solstice occurs when either of the Earth's poles reaches its maximum tilt away from the Sun. Both the North and South Poles have a winter solstice. For those of us living north of the equator, ours occurs today, December 21st. We experience the shortest period of daylight and the longest night of the year. The North Pole exists in twenty-four-hour darkness. Although the weather continues to get colder, the days grow incrementally longer from this point forward until we reach the summer solstice, and the cycle repeats. 

    The winter solstice is not the full day but rather a moment. Here in Fort Worth, that maximum tilt will occur at 11:59 CST. 

    Since prehistory, the day has been celebrated across the world with festivals and rituals to mark the death and rebirth of the sun. Across cultures, diverse peoples have recognized beginnings and endings on this date. 

    In keeping with that theme, I've made note of a few firsts and lasts.

    In 1620, the Pilgrims left the Mayflower and came ashore in Plymouth Bay on this date. None of the arriving settlers noted exactly where they first stepped onto the new world. In 1741, Thomas Faunce, a 94-year old man who claimed to have learned of the exact spot from his father, an early settler, established the site of the landing to be Plymouth Rock. The mythology began from there. 

    In 1891, on this date, the first game of basketball was played. James Naismith wrote the original rules to give his students exercise during the cold winter months. That initial contest had two teams of nine players. The equipment consisted of a soccer ball and two peach baskets. With a made shot, the janitor had to drag a ladder onto the court and empty the basket. Later innovators cut a hole in the bottom of the baskets. The final score, 1-0. No player received a shoe contract. 

    Crossword puzzles began on this date. The first "word cross" game was printed in the New York World in 1913. The civic minded editor, Arthur Wynne had to fill a level space in his newspaper. The original puzzle had 32 clues and was shaped like a diamond. Much like Plymouth Rock, there is a bit of fact and mythology there. Word puzzles have existed for as long as we have had language. (Can you find a sentence with two one-word palindromes in this paragraph?)

    Elvis Presley met President Richard Nixon in the Oval Office on this date in 1970. The meeting marked the beginning of Elvis' important work with the federal Bureau of Narcotics and Dangerous Drugs. 

    Admittedly, this one is a little forced in a blog about beginnings but the tale is too much fun not to include. 

    Vernon Presley, Elvis' father, apparently chastised Elvis for spending too much on Christmas presents (including 32 handguns and 10 Mercedes Benz automobiles.) Elvis left Memphis in a huff and ultimately flew to D.C. On the plane, he wrote a letter to President Nixon, offering his services to the president and the nation. All he wanted in exchange was the badge of a federal officer. (He already had a collection of local police badges.) Elvis' driver delivered him to the gates of the White House where the King deposited the letter. 

Ollie Atkins, chief White House photographer at the time. See ARC record.,
Public domain, via Wikimedia Commons

    Egil "Bud" Krogh, H. R. Haldeman, and a host of others who later became infamous during the Watergate scandal received the letter and arranged the meeting. Presidential aides escorted Elvis, dressed in purple velvet and an oversized gold belt buckle into the Oval Office for his meeting. Nixon's infamous taping system had not been installed yet. As a result, history did not record the conversation between the two men, but Elvis got his badge. 

    Photos taken at the meeting are the most requested pictures in the history of the National Archives. 

    There are endings also. December 21st, 1872 marked the conclusion of Phileas Fogg's fictional around the world adventure. In Jules Verne's novel Around the World in 80 Days, the gentleman returned to London after circumnavigating the globe on this date. Fogg and his valet set off in response to a challenge lad dawn at Fogg's club. Spoiler alert: Fogg won the wager and collected ₤20,000. 

    Not on this date--In 1889, the American journalist, Nellie Bly, completed the feat described in the novel. She circled the globe in 72 days. 

    The biggest of all possible finishes, the end of the world was forecast for December 21st, 2012. Doomsday prophets based their predictions on an interpretation of the Mayan calendar. Mesoamerican scholars at the time reported that the interpretation failed to appreciate the nuances of the Grand Cycle of the Mayan's Long Count calendar, and possibly some problems converting the Mayan calendar into the correct Gregorian date. Oops. 

    December 21st is marked with beginnings and endings. My tenure with SleuthSayers began early in 2021. I've seen some of my stories come to print and had others accepted for future publication. Okay, a few stories had abrupt endings this year as well, but I like to focus on the positive. 

    I wish each of you the very best this holiday season and in the year to come. 

    Stay safe and healthy. 

    Until next time. 

 

Supreme Grammar

  As I've mentioned previously, my employed hours are spent in the criminal courts of Texas. Consequently, I normally don't invest much time thinking about Supreme Court cases on topics outside of criminal law. That becomes apparent every time someone asks me a question about copyright or wills or contracts. 

    This past April, however, the Supremes handed down an opinion that I stumbled into while looking for something else, Facebook v. Duguid. The background of the case follows: As a security precaution, Facebook sends an automated text alert when a user logs in from a strange device. Duguid apparently had a recycled phone number of a Facebook user. He got alerts from Facebook even though he had never created a FB account. Duguid sued, claiming that the Telephone Consumer Protection Act of 1991 protected his privacy from this invasion. The act was written to prevent robocalls. (Who couldn't possibly be riveted by a case interpreting the Telephone Consumer Protection Act of 1991?)

    The case turned on the sentence within the act defining what the statute meant by an "autodialer." Spoiler alert--Facebook's notification was held not to be a statutorily prohibited "autodialer." As defined by the TCPA, an "automatic telephone dialing system" is a piece of equipment with the capacity both "to store or produce telephone numbers to be called, using a random or sequential number generator," and "dial those numbers." 

    What I found fascinating was not the outcome but rather the discussion. The nine justices focused on whether the clause following the comma "using a random or sequential number generator" modifies both verbs "store" and "produce" or just the one closest to it. The opinion is an argument about the significance of the comma. 

    Justice Sotomayor offered up the Series-Qualifier Canon of statutory interpretation. She argued that under this "conventional rule of grammar, "[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series," a modifier at the end of the list "normally applies to the entire series." She used commonplace sentences to illustrate the interpretation. 

    "Imagine if a teacher announced that "students must not complete or check any homework to be turned in for a grade, using online homework-help websites." It would be strange to read that rule as prohibiting students from completing homework altogether, with or without online support."

    Justice Alito agreed with the outcome of the case. He wrote a separate opinion, however, to criticize the reliance on the Series-Qualifier Canon. He threw down his own sentences to support a contrary position, including a Biblical quotation.

    "He went forth and wept bitterly [Matthew 26:75] does not suggest that he went forth bitterly."

    Justice Alito does not put forward a different interpretive canon, he argues that these are guidelines and are not ironclad. Interpretive canons are helpful in understanding language, but they are not to be applied as rigid rules. 

    This is the Supreme Court having a bare-knuckle brawl about commas and reading English. 

    Rest easy, the nation's brightest legal minds have resolved the burning question of an auto-dialer. Be forewarned, however, in the future, other words will surely come up for interpretation.

 

    To this point, Justice Alito suggests a data-driven approach to grammar rules, word usage, and definitions.

    "The strength and validity of an interpretive canon is an empirical question, and perhaps someday it will be possible to evaluate these canons by conducting what is called a corpus linguistics analysis, that is, analysis of how particular combinations of words are used in a vast database of English prose."

Jebulon, Public domain, via Wikimedia Commons

 In the future, therefore, we might crowdsource law. Corpus linguistics employs language usage databases to answer legal questions. When judges are called upon to interpret a word, they often begin with the question of 'what it means to the public?' To answer this, they might Google the word or look it up in a dictionary. Corpus linguistics seeks to systematize the approach. 

    (I've read short stories that put AI in the courtroom, usually as a substitute for juries. Here is a not-too-distant alternative use for AI.)

    If, for instance, a judge wanted to discern the meaning of "to keep and bear arms" and she wanted to know what the zeitgeist of colonial America was regarding firearms, she might look to the Corpus of Founding Era American English. Brigham Young University released the database with nearly 100,000 texts from the period beginning with the start of the reign of George III and ending with the death of George Washington. From a variety of texts, she could read how the words were employed. 

    Depending on her judicial philosophy, the original intent of the framers may not be the judge's desire as the tool for interpreting words and phrases. Consider this example: When the Earl of Sandwich wanted a bit of food that he might eat while gambling, the "sandwich" became meat between bread. That's what period literature would describe. An Originalist, therefore, would not include PB & J in the definition of a sandwich. As times change, our words, and language do also. (I thank Slate for this example 4/8/21) The scope of the applied corpus might also bake in race and gender notions no longer appropriate. 

    Corpus linguistics may be a great beginning to legal interpretation. (Much like the dictionary definition would be a great start.) The problem in a data-driven world is that judges might easily let quantitative analysis become the end rather than the start of the examination. 

    Few reading the post will ever engage in much statutory interpretation. What then might be the take-home point? Your commas matter. And, the story you write today may become part of the corpus, the database, that the computers of tomorrow's lawyers draw from. Choose your words carefully. 

    Until next time.

    

Walking With Your Head Up

 To no one's surprise, the booking section of my local jail does not have any windows. My office is in the basement of the criminal courts building. No windows there either. As a COVID precaution, I usually see prisoners these days using a video camera. When I am required to visit in person, the most efficient route is a tunnel running between the two buildings. 

    The point of all this detail is that in the course of my regular duties, I don't see the outside world all that often. To keep me conversationally relevant, I will try each day to break away between dockets and take a walk. I'm told it's healthy. From the courthouse, a short hike downhill brings me to the banks of the Trinity River. A bike path hugs the south bank. There I can choose east or west. I make decisions for a living. I can handle it. 

    Many days, I choose east. A branch of the community college is that way. They have an open-air plaza. It is pretty. A set of long, granite stairs brings me from the riverbank back up to street level. I usually walk along Belknap Avenue past the historic courthouse and return to my building. 

    The short walk passes by businesses, through nature, and beside the buildings of government. On a good day, I'll encounter joggers and cyclists. I pass by the homeless, sometimes carrying on conversations with people only they can see. I watch litigants and tourists. The walk provides a rich mix. I routinely meet one rollerblader. He flies by with a smooth stroke and graceful elegance. He reminds me of a Dutch speed skater in the Winter Olympics. I look forward to watching him flash by me. 

    The other day, there was a freedom rally on the steps of the old courthouse, the picturesque one. The assembled mass was against vaccine mandates, against stolen elections, and against allowing freedom to wither. They were, however, decidedly pro-flag. The lawn in front of the courthouse was bedecked with American and Texas flags, the yellow "Don't Tread on Me" flags and the white "Come and Take It" flags also added some diversity. 

    Sadly, I had to leave before the speeches really got going. 

    In a talk, I once referred to myself as a "life collector." I gather up tidbits of encounters. If I'm fortunate, I can slap them into a collage and send them out as the occasional short story. These walks and these people provide great opportunities to work on my collection. 

    The other day I encountered a homeless man. He was wearing a green t-shirt with a silhouette of a dog on it. Above the dog, the shirt said, "I Shih Tzu not." He got tucked away in my mental file. I don't know where he'll resurface, but rest assured, he'll find a place in a story someday. 

    On Belknap, there sits an old jewelry store. It's closed now and the windows are boarded with plywood. A coffee shop operates out of the back end of the building. The building predates many of the government buildings which surround it. If you imagine the jewelry store as the center of a compass, to the west is the criminal justice center, my building. About the same distance to the east sits the family court building. Walk one block north and one arrives at the county's adult probation department. Living at the center of all this divorce and criminality, it's a small wonder that the jewelry store relocated to a more commercially viable part of town. The building, however, remains

(Coffee shop is the small sign on the right)

    Somedays I pass by and imagine the proprietor hanging on to his small piece of real estate, making his living off desperate lawyers who realized that today was their anniversary. Other times, I think about the odd juxtaposition of the coffee shop/jewelry store. I imagine patrons stopping by to pick up a cappuccino and impulse buying a Rolex. More often, I think about all those criminals and alleged criminals spilling out of the jail, courthouse, and probation departments walking by the storefront and seeing those attractive temptations, the glittering gems in the unboarded windows. 

    Many of the pedestrian musings about the Credit Jewelers coalesced in Dry Bones, my story in the current edition of Alfred Hitchcock Mystery Magazine. Where do story ideas come from? This one has a specific address, the corner of Belknap and Houston streets in downtown Fort Worth, Texas. 

    The story centers on the characters and their interactions within and around that place. Back in September, DoolinDalton ran a column on using setting as a character.  Because of the strictures of length in a short story, I didn't do much to bring the store into the story. I didn't bog the narrative down with smells or sounds or many other details to give a complete sense of place. The location isn't a character in the story, it is an inspiration. 

    Dry Bones exists because of a walk I took and the things I noticed along the way. On my rambles, nearly everyone I see wears headphones. I don't like to. They miss out on opportunities to collect the odd tidbits which might make up the next tale. Walk with your head up, you might be surprised what you'll collect. I Shih Tzu not. 

    Until next time.   

Laws and Flaws

     In my last post, I discussed the new "Constitutional Carry" laws enacted in Texas during the most recent legislative session. Those laws took effect on September 1st. The changes to the gun laws were not the only alterations to Texas' legislative canon. As I mentioned in that last post, a few other notable additions caught national attention. The abortion restriction/life protection of the fetal heartbeat law and the voter suppression/election integrity laws elicited praise/criticism depending upon the reporter's political stance.

      Those changes and the attention they garnered obscured some other modifications to the Texas Penal Code. Before you strap on your Smith and Wesson and come on down, I want to make you aware of a half-dozen of them. I'd like to thank my friend, Richard Alpert, a member of the Baylor Law School faculty and legislative update speaker, for helping me bring to your attention a few that might have escaped local or national publicity. 

ProtoplasmaKid,
CC BY-SA 4.0,
Wikimedia Commons

1. The Texas Legislature solved homelessness. I think that the Nobel Peace Prize will be making its way to Austin soon. Every state can follow our model with this innovative and low-cost strategy. The governor signed a bill making homelessness illegal. Texas Penal Code § 48.05 prohibits camping in a public place. To ensure that all those people who want to be homeless can't sneak around our prohibition, the language forbids sleeping in tents, lean-tos, with bedrolls, sleeping bags, or blankets. Because we're not inhumane down here, the law specifically says that before the police can ticket for the violation, they must first counsel with the camper about alternatives, alert them to the dangers of human trafficking and try to contact appropriate government and non-profit officials. If they arrest, the police must also make sure that the camper's belongings are safeguarded. Our law enforcement officials don't need to be concerned with arresting murderers and rapists, they have a new legislative priority. Still, the Nobel Prize will look cool at the governor's mansion.

2. Lest you become concerned that all these counseling duties will make our local police too soft, Texas Penal Code § 9.54 authorizes the use of deadly force with drones by law enforcement. Drones are prohibited from killing if they are autonomous. No algorithm will determine when a robotic death ray may be deployed down here. 

3. While the Texas legislature relaxed the gun laws, it did up the restrictions on fireworks. Texas Penal Code §50.02 makes it a felony for someone to explode fireworks intending to interfere with the official duties of a law enforcement officer.

     Something like this might have happened in Portland or New York or Los Angeles. No one seems to be quite sure. There are no reported cases of firework assaults occurring here in Texas. We also had a variety of laws prior to September 1st safeguarding police and criminalizing attempts to hinder them in their duties. Apparently, what the legislature had done in the past wasn't enough. Now, police are specifically protected from Black Cats and bottle rockets.

     This change seems instructive on the legislative process in the social media age. Someone saw a post about something happening somewhere. Texas now has a law here to punish behavior that maybe happened there.

English: Designer unknown;
published by Knopf,
Wikimedia Commons

4. Police were not the only occupation to find the rules changing around them. Texas Government Code § 1702.3876 makes it against the law to impersonate a private investigator. Many fiction readers/writers praise research as the key to authentic writing. Remember this one before you go full-on "Spade and Archer" preparing for your next story.

5. The legislature modified Texas Penal Code § 43.251and raised the minimum age for employment in a sexually oriented business from 18 to 21. If you find yourself hanging out in some seedy cabaret and alongside a pole-dancer, rest assured that, by law, that employee is old enough to carry a handgun in a holster. You might keep your artistic criticisms to yourself. 

6. If these changes arouse your passions and motivate you to run for office, but you find yourself constrained because you happen to be ineligible as a convicted felon, take heart. Since September 1st, Texas Penal Code § 37.10 reduced the punishment for individuals convicted of lying on an application for a place on a ballot. If you want to cross your fingers and fudge about your record, hoping that no one notices, the penalty for getting busted was lowered from a Class A misdemeanor to a Class B. You're looking at only half as much time in jail.

Of course, there were a host of other legislative changes. Some plug loopholes and others address niches that had been overlooked in the hustle of past legislative sessions. Here's hoping that the above list will help you stay legal on your next swing through the Lone Star State.

Until next time.

A Mess With Texas

The Texas Legislature received a great deal of publicity this past session. For out-of-staters, by law, the Texas House and Senate may meet for a maximum 140-day regular legislative session once every two years. (It is rumored that some of the state's founders pushed for a two-day legislative session once every 140 years.) Because of the time crunch, once the legislature convenes, the session is a compact, dried-on-hot affair with bills flying around the state capital in Austin. Some of the laws enacted this year drew national ire or acclaim depending upon the politics of the reporting body. In particular,

Texas grabbed the national spotlight for new rules regarding abortion/life protection, and election integrity/voter suppression. 

    The legislature also passed, and the governor signed new gun laws dubbed "Constitutional Carry." Since this is a crime and crime writer's blog, I thought it might be worth a column to review these law changes. Many stories get set within the borders of Texas. Let's look at what your characters can legally do regarding carrying weapons. 

    In short, the new laws allow most people to carry a handgun in a holster most places, either openly or concealed, without first obtaining a license to carry. 

    We can chug through the shorthand focusing on the italicized words. 

Most people: The new laws apply to persons 21 years of age or older. Sorry kids, no guns.  Texas has several exceptions to the above-stated general rule. Adjudged felons may not carry firearms. Defendants convicted of a few misdemeanors (assault, threats, disorderly conduct with a gun) can't carry if the prior offense occurred within five years of the carrying. Family violence and individuals under protective orders are prohibited from carrying firearms by federal and state prohibitions. Criminal street gang members are prohibited from carrying firearms as are most intoxicated people. 

    This last line may be my favorite. You can be intoxicated with your gun on your property, or another's property with their consent, or in your boat or vehicle (or another's with their consent). 

    I'm left to wonder about the scope and nature of my consent. If Michael Bracken invites me to his annual Gathering of Writers is he implicitly authorizing me to bring my gun and get drunk? Or does he have to include that in the invitation? And why wouldn't he? What could possibly go wrong with that scenario? 

   A handgun:  Texas has always been less restrictive regarding long guns, rifles, and shotguns. These weapons may be carried unless the armed individual runs afoul of some other statute like disorderly conduct or trespass. The legislature also relaxed the rules over the last few sessions on clubs, knuckles, and knives. I think the logic is that if everyone else is packing 9mm Glocks, are you really that worried about the Bruce Lee wannabe carrying nunchucks? 

In a holster: Buy stock in holster companies. They are a key piece of Texas' new legislative scheme. Carrying a handgun in plain view in a public place is illegal unless the weapon is in a holster. Carrying in a vehicle in plain view is prohibited unless the weapon is in a holster. In the old days (before September 1st) licensed weapon holders had to carry in a shoulder or belt holster. Those restrictions on holsters have been removed. Any holster is now permissible. Litigation will define holster in the years ahead. 

Most places: The new laws carve out eight places where weapons are impermissible: high school, college, and professional sporting events, amusement parks, hospitals, and bars are among those places where weapons were and remain prohibited. Churches are not on the list. 

Either openly or concealed: Since September 1st, no courses, tests, or proof of proficiency is required to legally carry a handgun. The law mandates the Department of Public Safety to develop a training video for the safe handling of firearms. Two videos may be found on their website. They both run for about 8 minutes each. 

     The license to carry still exists. Having one may avail you of more defenses if you are charged with illegally carrying a weapon. It lowers the number of places from which you are excluded. A licensed carrier may also take advantage of the reciprocity laws in other states. 

    The new legislative package also amended the duties of a peace officer to authorize the temporary disarming of a person carrying a firearm if the officer believes it is necessary to protect the officer or another. This has long been the law, but it is made explicit in the new code. Whether the mere carrying of a weapon is enough to meet the threshold to disarm will have to be decided by the courts. 

    That's an incomplete thumbnail sketch of the law. Two other changes, largely philosophical, are worth noting. The governor signed into law a prohibition on local law enforcement assisting federal authorities in enforcing gun laws passed after January 20th, 2021 (President Biden's inauguration). Although no new federal gun laws have come into being since then, we are now a "sanctuary state" for firearms. New laws also removed firearm silencers from the list of prohibited weapons. The legislature added a section to the Government Code to regulate the intrastate production of silencers (an attempt to get around the federal government enforcement of a prohibition through the Commerce Clause). Texas doesn't have a thriving cottage industry in domestically produced suppressors, but someday we might. 

    There you have it. We've joined 20 other states in having some form of Constitutional Carry enacted. Put your piece in a holster and come on down. 

    Last thought. The new laws make it almost impossible for a hotel to restrict a guest's right to bring a gun into his/her hotel room. If you do come to visit, you might choose an innkeeper offering Kevlar sheets.

(Life requires me to be away from my computer on Tuesday, September 27th. I apologize for not responding to comments.)

    Until next time. 

Maps

Mark Thielman

     When my wife and I got married 30+ years ago, our friend Kathy gave us the Complete Atlas of the World as a wedding present. The book is an oversized coffee table volume with a jet-black cover. The blue marble of the world as seen from space adorns the front. It was intended as a metaphor for our new life. Kathy challenged us to explore and to dream of the places we'd go. We thought it was a cool gift at the time. We still do.

    What's interesting about pulling out that old atlas now is to see the changes written across the pages. The book seems heavy, fixed, and permanent. But there on page 50 is the Union of Soviet Socialist Republics, one solid band of unified color spanning a huge piece of Eurasia. Or on page 98, the Africa map with its hard, unchanging boundaries for Ethiopia and Sudan. I could go on but you get the idea.

    I've been thinking a great deal about travel lately. This was supposed to be my first SleuthSayers blog after Bouchercon. I had assumed I'd jot down some observations about the conference, congratulate the winners, reference the people I'd been able to meet in person, and intersperse those thoughts with the smells, tastes, sights, and sounds of New Orleans. That blog will have to be postponed until after the 2022 conference in Minneapolis. (I anticipate different tastes and smells.)

    I've been looking forward to traveling. I've missed waking up someplace different, knocking about exploring and discovering. I've missed seeing sights and trying foods. A couple of weeks ago in this blog, Robert Lopresti mentioned a bit of a conversation he overheard at a previous Bouchercon. Those lines made their way into a story. Let me add that to the list. I've missed collecting dialogue souvenirs. Not only have I missed going away, but I've also missed returning home to my familiar, and the simple joy of knowing where the things I use to construct my daily life are located.

    Although my wife and I haven't been hermits since the COVID onset, we have limited our venturing out to new places. The question, "where should we go?" as often as not has been replaced by "should we go?" Although the answer has sometimes been yes, spontaneity has seen an additional hurdle placed in its path.

    The September/October issue of Alfred Hitchcock Mystery Magazine includes my story, "The Map Dot Murder." The tale is set in a small west Texas town. The high school's social studies teacher is murdered. His classroom is map festooned. Yet, most of the town's inhabitants are people who haven't gone anywhere. They've lived their lives within the town's boundaries. Some residents like it that way. Others resent it. A few have never bothered to think that they might have options.

    Just as I should have been finalizing my plans for Bouchercon– circling topics on the schedule of events, composing snappy answers to questions for my panel, and sending final emails to arrange get-togethers– comes my story about staying put. You know the timeline for stories. Tapping out the story on your keyboard takes a while. Rewrites, edits, and polishing add some more time. Then you send it off, drumming your fingers while waiting for an acceptance email. Finally, the movement to publication requires another chunk of time.

    The story should have come out as I was preparing to travel. Instead, it was published as I was sitting at home, folding my map from the journey I didn't take. Like the Complete Atlas of the World, perhaps it serves as a reminder about the illusion of fixedness.

    I hope you enjoy the story. And, whether you're at home or on the road, stay safe.

    Until next time.

Jail 101

    As I've mentioned before, I think of myself as a writer with a magistrate hobby. Magistration, however, is how I pay the bills. I venture over to the basement of the jail, sometimes in person and sometimes virtually. There I meet my county's most recently arrested individuals. I cover their rights and review their bail. With that, I'd like to share a few introductory thoughts about the jail process. Should you decide to get yourself booked into jail in my county to make your writing authentic, here are a few things you might want to know.

    1. Dress for it.

It's cold in the jail. If you had to manage a population of inmates who might be aggressive and smelled bad, you might like them to be a little cold too. That makes good administrative sense. But if you were arrested coming home from the sorority party in your little black dress, you might be miserable. Plan for it. Wear a sweatshirt. It's a jail, not a flight--they won't give you a blanket during the booking process.

They will take your shoelaces, belt, and necktie. Loafers are a good choice for men planning on jail. Cowboy boots are another option. You don't want to keep walking out of your shoes. And the spike heels that paired with the little black dress will get really painful. There is a lot of standing during the book-in process. (I'm the only one who gets to sit during magistration, for instance.)

    2. Prepare to be uncomfortable.

Andrew Bardwell from Cleveland, Ohio USA
CC BY-SA 2.0 <https://creativecommons.org/

They build the jail's booking unit for safety and not comfort. The jail offers as little as possible that can be broken, pulled loose, or used as a weapon. What furniture the jail provides is metal and bolted to the wall. It's smooth so that it can be sprayed clean, if necessary.

The jail is noisy. All the doors bang. They clang shut with a metallic certainty. At various points, there are security crossovers, small vestibules through which one must pass. The door on one side must close and latch before the door on the opposite side will open. If the crossing guard gets distracted, you might wait for a moment before he or she opens the second door. Standing in that steel and glass aquarium always feels like a long time.

Lots of people are detoxing. They have a drunkard's certainty that if they just yell long enough, the jail's staff will attend to their situation. The squeaky wheel does not always get greased. In jail, it presents as a test of wills. Assuming you're not in jeopardy, the jail staff usually wait until the wheel wears itself out. 

The jail does feed you during the booking process. The trustees deliver a bologna sandwich and two cream sandwich cookies. Water is available in the holdover cells. Take it when you can get it. The food won't come around again for eight hours.

    3. Be Clear on your Politics.

If you want to be an anti-vaxxer, that's a choice you're making. But a TB test isn't an inoculation. Refusing to take one will get you isolated. The jail has strong feelings about contagious diseases running loose among its population. COVID-19 jokes are not funny, and they won't get you released any faster. 

Shouting "I can't breathe" for an hour or more undermines your claim. There may be many things wrong with you, but your airway is not occluded. 

    4. Dress for it #2.

At some point, you'll transition from street clothes to a jail uniform. You'll wear coveralls. They won't fit. For men, green uniforms signify general population. Trustees wear black and white stripes. Red denotes high-risk. (for women, it is beige for general, yellow for high-risk). Inmates at risk of self-harm wear a poncho of padded green. It is held closed with wide straps which cling to the poncho. It is almost impossible to tie the poncho into a knot or to look good while wearing it. The jail will substitute orange plastic slides for the shoes you walked inside wearing. Some inmates wrap their toes in toilet paper. It makes them look like they're wearing socks. When the first inmate does it, others quickly follow. We have influencers in the jail. 

    5. Give your real name. 

The jail checks your fingerprints. They'll figure out who you are. Then you'll catch a new charge for failure to ID. If you're on parole, the charge won't matter to you. If your visiting jail with a misdemeanor, you've likely made your troubles worse. 

    6. Memorize a Number. 

When I go to jail, I don't get to bring my phone. You won't have access to yours either. The jail will collect your property early in the booking process. They won't give your phone back once your bond is set so that you can find someone's number. Memorize it in advance. 

The holdover cells have phones in them. You'll get to make calls. But the jail shuts off the phones at night. They didn't deliberately put you in a cell with a broken phone. A surprising number of my defendants are certain that they've been singled out. That leads to the final point...

    7. It's not a Conspiracy. 

The jail books in defendants. That's what they do 24 hours a day/ 7 days a week. Today's high-profile case will be displaced quickly enough by the next attention grabber. Although it is the most important case in the world for you, booking is a process to the jail staff. They are not out to get you. They are out to get your identity established, and to collect your fingerprints, your photograph, and the other biometric bits they need to keep track of the people who move in and out of their facility every day. Roll with it. 

Until next time.

An Appealing Short Story

     Following a conviction in a criminal trial, the defendant has a right to appeal. He or she
argues that errors the judge made during the original trial affected the outcome of the case to such a degree that the defendant should be entitled to a "do-over." The appellate judges do not retry the case, but rather read the court reporter's statement of facts and evaluate the defendant's claims. Appellate courts issue written opinions weighing the merits of those raised issues. 

    A common claim on appeal is the sufficiency of the evidence. The jury, the argument goes, succumbed to the passion of the moment. In a sufficiency challenge, the appellate court is asked to rule that the admitted evidence could not support a finding of guilt by a rational trier of fact. When the claim is raised, appellate courts spell out the facts. They articulate why a sufficiency claim is not supported by the evidence (or conversely why it is). Appellate opinions are often technical. They are organized around the defendant's claims of error and hash out the arguments regarding those claims. The reading is not necessarily dry, but rather it is purposeful. A sufficiency claim lets the reader get involved in the story of the case, to read what the evidence showed to have happened. 

    I came across a local case recently, Andrews v. The State of Texas. The defendant, Mark Andrews, and his wife, Doris, shared a house with another couple, Don and Amy. Andrews and Don had worked together at a local trucking company until Don quit because of health problems. Mark Andrews later left as well. He became a professional gambler. This career choice routinely had him out of the house from 3:00 am until 8:00 am. The Andrews owned three dogs, Diesel, Sparky, and Tanker. Diesel and Sparky slept with Doris. All three dogs barked at strangers. Don and Amy called them burglar alarms. 

    On January 8th, 2016, at 4:30 am, Mark Andrews burst into Don and Amy's bedroom. He screamed for them to get help. While Don called 911, Amy followed Andrews into his bedroom. She saw him beside the bed, screaming Doris's name. Doris was lying on the bed in a blood pool. Andrews asserted that someone was in the house. He searched from room to room. Then he returned and began chest compressions on Doris. Amy recognized immediately that Doris was beyond saving. Centered on a rug in the bedroom, as if on display, she saw a hammer. While her husband stayed on the line with the emergency operator,  Amy observed that the door to a safe concealed in the living room stood open. Andrews, she testified, looked overly dramatic and announced that the safe had been burglarized. 

    When the police arrived, Diesel, Sparky, and Tanker barked wildly and had to be put outside. The police found no sign of a forced entry. Further investigation revealed that Andrews had recently researched funeral costs, had finances in disarray due to gambling losses, and that Doris owned life insurance. The murder weapon, the hammer, belonged to Andrews and was normally stored in a secured shed. The police discovered the shed unlocked and the door showed no evidence of damage. 

    There were other threads of evidence in the case as well. I am skipping over them for our purposes. The jury convicted Andrews of murder and sentenced him to life imprisonment. He appealed. The court of appeals found the evidence sufficient to sustain the conviction, writing that whoever murdered Doris had: 

        -The physical strength to commit the offense (Don did not. Andrews did).

        -Access to the shed to retrieve the hammer without using force (Andrews did). 

        -Not aroused the alarm of Tinker, Diesel or, Sparky (Andrews would meet this criterion). 

    It is this last point I want to focus upon in a blog for crime fiction enthusiasts.  Sherlock Holmes readers will remember "Silver Blaze," from The Memoirs of Sherlock Holmes. Holmes deduces that the thief of a famous racehorse was someone well-known to the stable dog. 

        "Is there any point to which you would wish to draw my attention?"

        "To the curious incident of the dog in the nighttime."

        "The dog did nothing in the nighttime." 

        "That was the curious incident," remarked Sherlock Holmes. 

    Holmes grasped that the nighttime visitor was someone the dog knew. The government's evidence in the Andrews trial made clear to the jury that Diesel, Sparky, and Tanker had barks that were "high-pitched" and "yippee [sic]." They did not like strangers and had to be put outside to enable the police to conduct their investigation. Yet, on the fateful evening, they sounded no alarm. The prosecutors raised the point, and the appellate judge went so far as to drop a footnote citing Sherlock Holmes.

    I worked with the prosecutor who handled the case. I called Kevin and asked him if he knew about the Arthur Conan Doyle story. He did not, but he will. We concluded our conversation by finding a PDF of "Silver Blaze" online. 

    After I hung up, I thought about all of this. As mystery fans, we have the best of both worlds on display. Seasoned trial attorneys independently found significance in the same absence of facts as Sherlock Holmes. The contemporary example of life imitating art should make the story continue to feel real and viable. Conversely, the appellate judge knew about "Silver Blaze." He recognized the parallel between the case he was deliberating upon and this hallmark of the literary canon. He purposely incorporated Arthur Conan Doyle's story into his opinion and in so doing, gave names to the anonymous stable dog: Tanker, Diesel, and Sparky. 

    Is it over the top to say that Doris got some justice because of the "dogged" work of the police and prosecution? I think it probably is. 

    Until next time.  

Rejected

     A few weeks back, Barb Goffman wrote a column in which she discussed writing what you know. She widened the lens on that convention and talked about finding core emotions and desires central to humans. She wrote about connecting to characters quite different from herself by finding the truth in human behavior. Focusing on elemental characteristics freed Barb to tell her stories through a wide array of voices. 

    I agree with her. I'm glad that we get to assume the role of other people. That's one of the ways I find joy in writing. I don't really care to write stories about lawyers. Part of the fun of this exercise is to get away from my day job and to learn a little bit about somewhere or something different, to depart from my daily routine. Consequently, I've not written many stories about lawyers. (I have a couple of tales of an attorney set in pre-revolutionary France, but I don't count those. They are far removed from my day job.) Play other people, but find the core that connects to everyone. 

    It is, however, not an inviolable rule. I've written a couple of stories featuring an attorney. The trial lawyer is a good vehicle for thinking about rejection as a part of the human condition. I tell people that my career as a courtroom attorney was a good prologue to writing and to submitting stories. I got used to rejection. Generally, I found juries to be rational bodies earnestly striving to do the right thing. But there is always an element of mystery built into the system; no one can guarantee an outcome. I've won some cases I expected to lose and, conversely, taken acquittals in some trials I thought I'd win. The uncertainty motivates negotiated pleas. Many times, neither side wants to know what a jury might do when certainty of outcome is available.

Flickr-Joe Gratz

    I've tried some cases where at the outset, I knew that my evidence was weak. I didn't think my chances of success were particularly good. Yet during the trial, one finds the slim reed of hope upon which to grasp. My witnesses exceeded expectations or perhaps weren't as disgraced by opposing counsel as imagined. A cancerous optimism began to take hold. We might win this. Despite everything, invariably, I convinced myself, if only myself, that our side would be victorious. When the jury's verdict returned me to reality, it still hurt. I was always disappointed when the outcome didn't go my way. The expected acquittals, however, were easier to lay aside, enabling me to move on to the next case. 

    The ones that lingered were the ones I didn't see coming. The case went smoothly. The testimony delivered as expected. As the prosecutor, I felt confident. More telling, the defense attorney could be heard on his phone lining up his case for the punishment phase of the trial. The judge blocked out time for the additional punishment evidence. Everyone knew the outcome. Unfortunately, no one bothered to tell the jury. Some of the worst professional days I've known were when I had to watch a jury acquit my defendant and then try to explain to child witnesses (usually in sexual abuse cases) why the jury did not believe them sufficiently to convict. The honest truth was, I didn't know. 

    Painful hangovers have occasionally followed those days. Drinking was an immature response to the problem, and I can't condone it, but I've now and again practiced it. We all need to figure out how to handle rejection. (For writers, Michael Bracken and Robert Lopresti among others have SleuthSayer columns devoted to this topic of rejected stories.)

    A prosecutor's courtroom difficulties lay at the heart of "Catch and Release," my story in the most recent Guppy anthology, The Fish That Got Away. 

    Guppies are a chapter of Sisters in Crime. The name is an acronym for "Great Un-Published," although members include those who've been published many times over as well as those who are still waiting to see their name on a printed page. They, like the SleuthSayers and the Short Mystery Fiction Society, are an association of writing comrades. 

    As a prosecutor in a large urban jurisdiction, I had officemates surrounding me to celebrate the successes and to commiserate after the failures. Sometimes they lent an ear while I complained; sometimes they bought the first round. A network is important. It motivates you to press forward and helps you up after a fall. I appreciated my fellow attorneys back in my courtroom days. As writers, we tap away as solo practitioners. The networks are virtual but still real and still valuable. 

    Thank you for your support. 

    Until next time. 

Cleveland

    A few years ago, my family and I visited Cleveland. We spent a great day wandering around inside the Rock and Roll Hall of Fame.  I had a good meat at a nearby bar my wife learned about through an episode of Diners, Drive-Ins and Dives. If I swing back to Cleveland, I'd like to take a little time and visit the James A. Garfield Memorial at Lake View Cemetery. I've been fascinated by Garfield since I read the biography, Destiny of the Republic by Candace Millard. 

    The larger point is that while I have visited Cleveland and enjoyed myself, I have not even scratched the surface of the city. I will, therefore, happily defer to anyone who might be in a better position to speak to today's question. What has made Cleveland a hotbed for the development of search and seizure law? 

    On June 10, 1968, the United States Supreme court handed down Terry v. Ohio. The case's facts are straightforward. A Cleveland police officer stopped a man he suspected was about to commit a robbery and patted him down. The officer found a gun. The Supreme Court recognized the right of a police officer, with reasonable suspicion based on his or her training and experience, to detain and frisk a suspect. The stop and frisk was born. 

    The pre-Terry world had two categories of police/citizen contact. A voluntary encounter--an officer has a conversation with a civilian--and an arrest. Terry v. Ohio introduced the concept of a "detention." Consider the consequences. If the police saw a masked man holding a prybar and shining a flashlight outside your house at midnight, the Terry decision is the officer's authority to detain him for an investigation. 

    Consider the consequences. If a misguided police officer wants to harass someone, the Terry decision provides a lower bar for the opportunity. (Chief Justice Warren discussed this issue at the time of the decision.) 

    The Supreme Court gave this round to the police. 

    I can't count the number of cases I've looked at which were some variation of a Terry stop. 

    But Cleveland cases go the other way as well. Mapp v. Ohio was a win for defendants. 

    On May 23rd, 1957, Cleveland police got a tip that a bombing suspect might be at the apartment of Dolly Mapp. The police knocked and asked permission to enter. Mapp refused to admit them without a search warrant. 

    Later, more police returned. They forced their way inside the apartment. The police showed Mapp a piece of paper. She grabbed it and stuffed the "warrant" inside her dress. The police recovered the fake search warrant. The handcuffed Mapp and searched her apartment. They found the suspect, some gambling paraphernalia and a small stack of pornographic books. Mapp claimed an earlier tenant had left the magazines. 

    After Mapp refused to testify at the trial of gambling higher-ups, she was prosecuted for the pornography. She was convicted even though the search warrant was never produced. The Ohio Supreme Court affirmed. Although the search warrant's validity was sketchy, the police had not used the kind of force which "shocks the conscience." This holding was in line with existing precedent. 

    The U.S. Supreme Court pivoted. They held that "all evidence obtained by searches and seizures in violation of the Constitution is...inadmissible in state court." 

    There may be other ways to treat police misconduct, civil liability or increased training and supervision. The court, however, held that without the exclusionary rule, the Fourth Amendment's protections would merely be "form words" that would be "valueless and undeserving of mention in a perpetual charter of inestimable human liberties."

    That round to the defendants (Or, perhaps to those who want to be secure in their homes, safe from unreasonable government intrusion.)

    Mapp and Terry will be included on most lists of landmark 4th Amendment cases. Both changed the trajectory of the way police operate in this country. Perhaps it's the water, the mix of Lake Erie with a splash of Cuyahoga River which makes the city ripe for 4th Amendment litigation. Maybe we need a resident to weigh in on this one. This much remains clear. Regardless of where they are set, criminal legal thrillers and police procedurals all carry a little bit of Cleveland around in them. 

    Until next time.