Have Mask, Will Travel – I'm Ready for Malice Domestic

After a two-year hiatus (thank you, covid), Malice Domestic is resuming its annual in-person convention next week. I don't know where the time has gone. While I'm nervous to be in such close contact with so many people (freaking covid), I'm excited to see (and hug?--still a question mark) these friends I haven't seen in so long. It will be great to get back to normal and see my Malice family.

Normal. That's a concept, isn't it? Will it be "normal" considering a lot of the regulars won't be there? Some because of scheduling conflicts. Some because they're still being careful due to covid. (I so get that. I'll be checking in with a gazillion masks.) And some people won't be there because they're simply not around anymore. We've lost too many people we love since the last Malice, authors and readers.

But as they say, the show must go on. So, I've compiled information on where you can find me and my fellow SleuthSayers attending Malice. If you'll be there, I hope to see you.

Michael Bracken

• Michael will be moderating the panel Murder in Few Words: Short Stories on Friday at 4 p.m.
• He'll be participating in the signing for the new Malice Domestic anthology, Mystery Most Diabolical, on Friday at 9:30 p.m. 
• He'll also be in the signing room on Saturday at 10 a.m.

Barb Goffman (yes, that's me!)

• I'll be on the panel Make It Snappy: Our Agatha Best Short Story Nominees on Friday at 2 p.m.
• I'll be signing in the signing room on Friday at 4 p.m.
  
• I'll be participating in the signing for the new Malice Domestic anthology, Mystery Most Diabolical, on Friday at 9:30 p.m. (And if you're interested in getting a copy, it should be newly on sale at Malice!)

Art Taylor

• Art will be moderating the panel Make It Snappy: Our Agatha Best Short Story Nominees on Friday at 2 p.m.
• He'll be on the panel Last Night, I Dreamt I Went to Malice Again: Romantic Suspense Influences on Saturday at 11 a.m.
• He'll also be in the signing room on Saturday at noon.

Mark Thielman

• Mark will be on the panel Murder in Few Words: Short Stories on Friday at 4 p.m.

If you haven't read the five short stories nominated for the Agatha Award, there's still time to read them for free before you get to Malice to vote. Click here and scroll down to the five story names. They are links. And if Malice Domestic is new to you and you want to learn more about this annual fan convention celebrating the traditional mystery, click here.

So, that's it. Get packing. (Oh, who am I kidding. I bet some of you are already packed.)  See you next week!

Grand Jury 101

             Current events have pushed the grand jury system into the news. I’d like to use my column space today to talk about grand juries. They rarely get more than a passing reference in television or literature. Let us give them their due.

            Grand juries are a group of citizens empowered by law to investigate potential criminal conduct and to determine whether criminal charges should be brought. In this dual capacity, they serve as both a “sword and a shield” for the criminal justice system. In many states, grand juries often have more members than trial juries. Numerical superiority gives them the name “grand” jury. “Petit” juries hear trials. Grand juries usually sit for a term of court. (Three months here) although the term may be extended by the district judge who impaneled the court. (In Texas, that extension may be up to ninety days.)

            In my jurisdiction, we compose grand juries of twelve citizens. That is the same number as a felony petit jury. Nine must vote to indict a case. If only eleven grand jurors show up on a particular day, it still requires nine votes to indict.

            You’ll notice some hedging. The Fifth Amendment to the U.S. Constitution requires grand jury involvement in federal cases. It is not mandatory for states. About half of the states do not require a grand jury indictment to initiate a prosecution. Because they are creations of state law, the rules governing them vary from state to state.

            In Texas, a grand jury indictment is not required. A defendant may waive his right to a grand jury indictment just as he/she can waive most constitutional rights. That only happens, however, in cases where the defendant intends to plead guilty. No Texas felony case any reader has heard of went forward without a grand jury indictment. Other states employ different procedures. Some use preliminary hearings the way we use the grand jury, an early test of the evidence to guarantee that it is sufficient to put the defendant to the rigors of the criminal justice system.

            The grand jury’s creation dates to the early days of English law. When judges rode the circuit, in each shire, a body of townsfolk was sworn to report to the sheriff crimes which had occurred since the last circuit court. During the era when the prosecution of criminal cases was an individual citizen’s responsibility, the grand jury helped to screen malicious or ill-conceived prosecutions.

            Although this last paragraph sounds like a pure history lesson, it has relevance. Texas law requires grand juries to inquire into offenses of which they “have knowledge or which they shall be informed by the attorney representing the State, or any other credible person.” In a local case, the district attorney declined to accept a charge involving a spousal homicide. The victim’s family hired a private attorney who appeared before the grand jury and presented his case. He acted in the capacity of “any other credible person.” The grand jury indicted the husband for murder.  

            Grand juries vote and act in secret. Neither witnesses nor jurors may talk about what happens in front of the grand jury. It is an autonomous entity that is not fully part of the judicial branch of government. The court empaneling it has some control over its actions. (As mentioned, that court must approve extending its term.) The court does not decide what a grand jury does. Grand juries are, by history and statute, vested with independence and inquisitorial authority. They are also not an arm of the executive. The district attorney may bring most of the cases and use the subpoena powers of the grand jury to call witnesses and to secure evidence, but the prosecutors are removed from the room when the grand jury votes. Although prosecutors usually bring the charges, they do not control the indictment. 

            The chestnut around the courthouse is that the district attorney could get a ham sandwich indicted. During some grand jury terms, that seems true. In other terms, it is not. The prosecutor brings the charges. As such, they generally set the agenda. They have broad discretion about who gets charged with what. They are usually the primary source of information about what the law is regarding a particular issue. Although grand jurors may ask the impaneling court, that rarely happens. The prosecutors have undeniable influence over the indictment process. In my jurisdiction, defense attorneys may only appear before the grand jury with the permission of the prosecutor. (In my experience, the district attorney rarely prevented the defense attorney from showing cards in the grand jury.)

            Grand jurors, however, bring their life experiences into those secret panels. In some terms, the district attorney has found a grand jury unwilling to charge minor drug offenses. They’ve brought biases in favor and against sexual assault victims and family violence offenses.

            Grand juries can subpoena witnesses and obtain evidence. The grand jury, therefore, is a useful government tool for locking down a witness’s testimony, particularly someone who did not avail themselves to the police. Since grand juries cannot gather evidence after a case has been indicted, the prosecutors must frontload their investigation of a case if they want to use the powers of the grand jury.

            Witnesses who chose not to talk or to make themselves unavailable are subject to being brought before the judge empaneling the grand jury. If they still decline to testify, they may be committed to jail until they agree to talk or until the grand jury loses jurisdiction when the term ends. Remember, terms here last three months unless extended.

            If the grand jury votes to formally charge a defendant with a crime, the document that issues is a true bill of indictment. Should they decline to charge, we say that the defendant has been no billed. No bill of indictment was issued in connection with that case. Jeopardy does not attach with a no bill but the practice here and in every other jurisdiction I’ve encountered is not to forum shop. The district attorney will not re-present the case unless new evidence is developed to believe that the original no bill would be decided differently. The advent of DNA testing resulted in a re-evaluation of previously not-indicted sexual assault cases.

            Grand juries get passing mention in literature and the news. The inner workings are a mystery to many. I hope this brief explanation leaves you better prepared as a reader, writer, and news analyst.

Until next time.

Courting Words

    "America and England are one people separated by a common language." Winston Churchill said it Or perhaps George Bernard Shaw, Oscar Wilde, or William Shakespeare
depending upon the website you go to. I thought of the quote the other day while reflecting upon my time as a prosecutor. I spent about nine years working in Dallas County before moving to become a prosecutor in Fort Worth. Thirty miles, give or take, separate the two courthouses. They both operate out of the same penal code, rules of criminal procedure, and evidentiary requirements, yet the local language of both jurisdictions differ. As folks who think about language, I'd like to take a few minutes and consider some examples. 

    When I started in Dallas, the chief prosecutor of the court to which I had been assigned would often talk about the "hook." He used "hook" as a synonym for criminal, but not just any defendant. The word "old" preceded "hook" either implicitly or explicitly. A hook had to have been through the system a few times. They were usually charged with property crimes. They were always male. (I've dealt with a few female "hookers" but that's something different.) A hook by occupation or misfortune was one of those frequent fliers we see in the criminal justice system. We used the term in Dallas. I've not heard it in Fort Worth. 

    The term can be misused. Early on in my career, I wanted to sound like a real prosecutor. I recall asking a long-time defense attorney, "what did your hook do?" His "hook" was an 18-year old first-time offender. The lawyer gave me a look that said I wasn't coming across as a grizzled prosecutor, but rather a kid wearing dad's clothes. (It wasn't the last time as an assistant district attorney that I ran roughshod over the language. Perhaps we'll discuss that in another post.)

Joe Gratz, CC0, via Wikimedia Commons

When I moved to the district attorney's office in Fort Worth, I heard talk during docket planning about "True-but." It sounded like a name you might find in the filing cabinet right before "Truman." We didn't use the term in Dallas, and you won't find it in any legal code. 

    Here is where it occurs. Let's assume that Defendant Dewayne has been sentenced to community supervision (probation). Defendant Dewayne has failed to report to his probation officer as required. The district attorney seeks to revoke Dewayne's probation. Defendant Dewayne may contest the revocation and force the government to prove the violation. (That's pretty easy to do in the case of reporting. The probation department keeps records of that sort of thing.) Instead, Defendant Dewayne might admit to the violation. In the legal parlance, he pleads "true" to the allegations. Dewayne may admit to the violation but feel that he can explain this big misunderstanding that landed him in jail. He wants to present his justification as part of the plea. It is true...but here is why. 

    We had the concept in Dallas, I imagine all jurisdictions do. We didn't have the term. We fumbled for a description. True-but is precisely what occurs. 

    Under Texas sentencing, by statute, felony crimes may be punished more severely if the prosecutor alleges and proves that the defendant had on one or two prior occasions been sent to the penitentiary. In the Fort Worth courthouse, the defendant is "repped." He or she has been pled as a repeat offender. In Dallas, they're "bitched." A defendant is either "low-bitched" or "high-bitched," depending on whether he or she faces one or two enhancement allegations. 

    The etymology of "bitched" in this context is, I believe, straightforward. A defendant with two prior enhancements is susceptible to being labeled a "habitual offender." Here in Texas, vowels have never been our strong suit. It is a short step from "habitual" to "high-bitch." And if "high-bitch" is two enhancements, then a single enhancement is just lower than that. Logical, ain't it? 

    Of course it also let us throw profanity around in public. It makes us sound tough and gritty. That's always appealing to people who wear suits for a living. 

Until next time. 

So You Want to be a Shoplifter

     I meet a great many small-time thieves during my work week. They shuffle into my tornado shelter of a courtroom located in the basement of the county jail. For most of them, I read a few details about their alleged offenses. The following is a list compiled from those encounters. 

    I've ranked the methods roughly by order of frequency. The list below only deals with retail theft. (If I expanded it to theft generally, I'd have to include defendants who take a reciprocating saw to the nearest apartment complex and begin collecting catalytic converters.)

    There is nothing scientific in the methodology. It's my list of observations over time. I'm also not vouching for the success of any of the below-listed techniques. I only meet my defendants when their attempts at thievery have been interrupted. Lastly, I'm not recommending any of the methods set out below. Local retailers have had a tough time the last few years. Give them a break. Pay for the merchandise before taking it from their stores. 

    That said, here you go. 

    1.  Just Grab It. This is the "See it--Want it--Take it Technique. (Or possibly, the See it--Think someone else will want it and therefore it has a resale value--Take it Technique.) The "grab and go" is the simplest and most common form of shoplifting I see during my workday. It occurs at Mom and Pop's and at the biggest of the Big Boxes. Some thieves grab individual items while others load up shopping carts and race out the door. A few have learned that if they steal a backpack, they can stuff it and keep their arms free for the sprint to freedom. The thieves who think about it, try to dash out through the Garden Center, or some other exit of the store considered less populated by Loss Prevention employees. 

    Although I meet middle-agers and senior citizens who attempt this most direct form of the five-finger discount, most of my grabbers are young. Occasionally, I see organized bands who sweep through a store, scooping up bags of merchandise. They are the locusts of the theft business. These crimes usually happen in clothing retailers. 

    2. Just Grab It, Oversized Clothes variation: Same technique as #1, but the thief wears baggy clothing. The fabric hidey-hole gets stuffed with merchandise. Since the thieves can't move as quickly in clothes stuffed with merch, concealment is necessary for success. Women wearing loose dresses many times head to the Electronics Department, while men with baggy pants seem to prefer the meat market of the grocer or warehouse store. If you're tempted to buy a discounted chuck roast from a guy on the street corner, think about where he might have hidden it shortly before you saw it. The mental picture might make you a vegetarian. 

    A baby stroller sometimes substitutes for baggy clothes. Kids also play their part in the next Method #3. 

3. Skip-scanning: Load up a grocery cart with items, push the cart to the self-checkout, and then only scan a portion of them. In the alternative, palm the bar code of an inexpensive item, and pass your hand beneath the scanner while you slide the T-bones and ribeye steaks into the shopping bag. A confederate often accompanies the thief. The skip-scanning method has some costs. The thief must pay for some of the merchandise. 

    If detected, the skip-scanning culprit will usually adopt a confused look and blame his or her children. The rug rats dropped those high-value items into the bag without the arrestee's knowledge. Much finger-pointing at the confederate is involved. Loss prevention officers frequently hear the phrase, "I thought you scanned that one." 

    Practice tip 1. Before you start waving your arms in an indignant claim that the kids did this, remember to peel the barcode off your hand. 

    Practice tip 2. If the store is on to you, sometimes they'll send a member of their helpful and courteous staff over and offer to assist you with the checkout. Unless helpful and courteous is a blood relative, expect to pay the full amount. They'll likely scan everything. 

    Practice tip 3. Contrary to street wisdom, bringing a child on a shoplifting adventure won't keep a thief from being arrested. It usually just delays the trip downtown until a guardian can be contacted. 

    4. Receipt Recycling: This technique most frequently occurs at the big box home improvement stores. Wander around the parking lot until you find a discarded sales receipt. Enter the store and collect the exact items detailed on it. Push the cart out, displaying the receipt as proof that you've already paid for the items. In the alternative, steer yourself into the Returns line. Bring back the items you've just loaded and seek a refund. Try to get cash for that hot DeWalt drill. 

    Receipt Recycling requires a certain attention to detail. It may not be the best method for defendants who shoplift while high. 

    Practice tip 4. If you're tempted to try it, don't deploy a receipt blackened with tire marks from having been driven over in the parking lot of the Big Box. 

    These are a few of the common methods. Since we celebrate human creativity and imagination in a reader's and writer's blog, it should come as no surprise that there are infinite variations to the above-described techniques. Methods change as rumors about what works swirl through the criminal community. 

    Remember: Don't try any of these at home. Thievery violates some of society's oldest commandments as well as the laws of every state. And I only get the details by observing people who have been caught. 

   
A while back, the above examples got me thinking about a story idea. In the March/April issue of Alfred Hitchcock Mystery Magazine, I explore a fifth method for committing retail theft. The story, "DIY," is loosely based on a caper I read about while working in the jail. The story, however, is not intended as a theft tutorial, but rather a contest between the people involved. I hope that the questions you ask at the end are less about the larceny technique and more about the moral choices of the characters. Mostly, I hope that you enjoy it. 

    Until next time. 

X Minus 15

Working in the district attorney's offices for both Dallas and Tarrant Counties, a prosecutor always had the benefit of an investigator to help put our criminal cases together. The investigator, usually a retired cop, would serve subpoenas, help locate witnesses, accompany assistant district attorneys to witness meetings in sketchy parts of town, and generally do what was necessary to help make a case prosecutable. 

They also drank coffee, lots of it. 

In Dallas, a cluster of investigators would gather each morning in Big Steve's office. There, they'd tell their old cop stories. Most rarely washed their coffee cups. Instead, they'd shake the stray drops into the trash can and set the cups aside in preparation for the next morning's "intelligence briefing." 

A part of the conversation invariably involved making lunch plans. DA investigators tended to go to lunch early. Real early. 

It made sense when you view the typical business model of those offices. Courts usually had morning dockets. The prosecutors would arrive, gather up their files, and later their laptops, and then disappear to court to negotiate with the defense bar. During dockets, prosecutors placed few demands on the investigators. If they ate early, the investigators could be back in place when the assistant DAs returned from court, well-fed and poised to aid the prosecutors in case preparation. They went to lunch early as a favor to the prosecutors. 

At least that was the story. 

From listening to old cops and assistant district attorneys, the golden era of crime-fighting was always today's date minus 10-15 years. 

When I started, I "shoulda been here a decade ago." 

When I stopped, the new hires, "shoulda been here a decade ago." 

And so the cycle continued. 

Jim, the retired motorcycle cop, had a great story about using his bike's police radio as a polygraph when interviewing witnesses. They'd put their hands on the bike's Dallas Police Department emblem. The radio would squawk when the interviewee was prevaricating. 

Paul, a diminutive man with a slow drawl, had the reputation as a cop who could handle himself in a crisis. If Paul called for backup, officers raced to his location. If he needed help, things were serious. Paul had a bucketful of stories. 

Sometimes they told tales of old prosecutors. Frank had arthritic fingers and a drawl to match Paul's. They'd tell about him in court, standing before the jury and pointing his fishhook of an index finger toward the defendant. Over the top of his glasses, he'd stare down the accused and call him a "malefactor." Back in the day, the jurors might not know what "malefactor" meant. From Frank's poisonous tone, they knew they didn't want to be one. 

Paul, Steve, Vicki, Art, Jim, and many other old-timers enriched my life with stories about their golden eras. I'm grateful for the tales they told. I wished I'd listened more and better. 

My story, "The Family Cycle," in the SINC North Dallas anthology, Malice in Dallas, taps into some of those long-ago memories. The story isn't a retelling of any one person in particular but rather a mosaic pieced together from a number of the folks with whom I had the pleasure to work during my time at the Dallas County District Attorney's office. 

I'd be remiss at this point if I didn't thank Barb Goffman, the editor of the anthology, for helping to make my mishmash of memories and thoughts into a coherent and workable story. 

Turning a distant memory into a short story offers several distinct advantages. I had the seed of an idea. The process allowed me to step back into that golden era for a little while. The hazy nature of my recollections made them easier to combine and craft into a piece of fiction. I couldn't get too hung up on any of the details. The cumbersome bits have been lost to time. 

I imagine we all have a tale about an overheard conversation at a Starbucks, a snippet that turned around in our heads and re-emerged in a story we've written. Big Steve's, I recognized now, was my neighborhood coffee shop serving Folgers and memories. 

If I'd known then that I'd be spending my time these days trying to tell crime stories, I'd have spent more in Steve's office soaking up the tales. Some of them were probably even true. 

I'd also have bought the coffee. 

I'll be traveling on the day this posts. 

Until next time.

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.