Reason or Insanity

    I meet the mentally ill, an omnipresent feature in the criminal justice system.

    They come into my cinder block courtroom located in the basement of the jail. Some shuffle in, sliding along with a sleepwalker’s gait. Usually slump-shouldered and dressed in dirty clothes, they stand quietly until it is their turn before the judge. They accept their instructions, answering in small voices, dull and flat. Other times, they twist and turn, unable to stand still. They deliver rapid-fire answers laden with asides. Others are brought in, cuffed to wheelchairs, or clad in suicide protection clothes and spit-guards. Although occasionally they sing or berate me during the brief hearings, a surprising number of them are polite in their responses given the expectations I form when they arrive in court ringed with security. 

    When they unleash a fusillade of profanity, they are quickly escorted out of court.

    

    The easiest defendants to identify are my criminal trespassers. They panhandle or simply camp outside gas stations. A couple of my regulars berate patrons seeking lodging at local hotels. The business owners call, and the police arrive. Law enforcement confirms that the loiterers have been formally warned to stay off the property and then they arrest them. They usually go quietly—they know the drill. Although ill, some have a well-honed survival strategy. When the weather turns too hot or too cold, they walk to the bond desk of the Sheriff's Office and settle. They refuse to leave. The deputies arrest them and walk them back to the jail. The scene is like Otis on the Andy Griffith Show only without the good humor.

    If you’re into Venn diagrams, the overlap between mental illness and my criminal trespassers is high. Criminal trespass, however, is not the only offense where I meet the mentally ill. They beat their loved ones, self-medicate with street drugs, set fires, steal, threaten, and hurt. Some research pegs the number of jail inmates reporting mental health problems at 64 percent. Not all my mentally ill are poor. I met an upper-middle-class man last week whose paranoia told him that the neighbors were threatening him. He responded by launching golf balls, shattering their windows. When magistrated, he assured me that he would sue me and all my co-conspirators. 

    I don’t worry much about the ones who only pack a Titleist. 

    I want to pause and parse words for a moment. Mental illness doesn’t make someone a criminal. Limited coping skills, poor impulse control, and a lack of access to proper prescriptions and services does make a criminal path more likely.

    No one likes pouring criminal justice resources into a revolving jail door for the petty crimes of the mentally ill we see. The absence of an alternative safety net brings them to us. My thoughts keep returning to the criminal trespasser. I have never met a police officer or district attorney who chose this career, dreaming of arresting or prosecuting the mentally ill panhandler. Those are not the defendants we tune into Law and Order to see. But I also think about the convenience store owner who watches her customers go to the service station across the street because there, the panhandlers aren’t harassing customers. 

    Sadly, I don’t offer a solution. Better minds have contemplated the issue without success. 

    In 2015, Sandra Bland was preparing to begin a job with her alma mater, Prairie View A & M, located in southeast Texas. Readers may remember the case, it garnered international attention. A brief recap—Sandra Bland was pulled over near campus while returning from an Independence Day vacation to visit with her relatives. What began as a traffic stop for failing to signal a lane change escalated into confrontation. Ms. Bland was arrested for assault on a peace officer. During jail intake, she reported a history of depression and a prior suicide attempt. Unable to post bail, Bland remained in county jail. Three days after her arrest, she hung herself in her cell. 

    In response, during the next legislative session, Texas passed the Sandra Bland Act. One component increased officer education for de-escalating possibly dangerous situations. Relevant to our conversation today, the legislation provided a system for reporting mental health concerns to the criminal courts. It also encouraged law enforcement agencies to get mentally ill misdemeanor defendants out of the criminal justice system through diversion programs and no-money, personal bonds. 

    To divert, however, the agencies need a place for the defendants to go. And with that, we circle back around to the absence of an adequate alternative. Locally, we’re still trying to find ways to cope with our numbers. 

    As readers and writers about crime, it is easy to overlook these cases. They only make the news when something dramatic occurs, as it did with Sandra Bland. This Independence Day as the temperatures soared around Texas, I saw again a spike in criminal trespass arrests. Non-violent, inconvenience misdemeanors are easy cases for the system to churn. A few days in jail and they are pled to credit for time served. 

    A better, more permanent solution proves far more difficult. 

    

    Until next time.

Law Class

I’ve been thinking lately about lawyer archetypes. (I don’t often sit around musing about Jungian psychology, but I needed to give a short talk on the legal profession, and one thing sort of led to another.) The topic comes up occasionally. An internet search leads you to a good CrimeReads article by Christopher Brown. The American Bar Association devoted an issue of their magazine to the topic in August 2016.

    Every occupation has its types: doctors, priests, teachers, and even assassins have predictable buckets for fiction and movies. I’m sure accountants and farmers have them, too. I just haven’t read enough books or seen those films. 

    For today’s conversation, I will identify five different types of lawyers. I focus primarily on criminal practitioners because that’s where I live, but I think the types are equally applicable to civil law.

            #1. The Crusader:

    When asked about a lawyer archetype, this is the one most commonly named.

Think Atticus Finch in To Kill a Mockingbird. The truth-seeking champion of the downtrodden speaking truth to power. She can be found seated at either counsel table in the courtroom. The Crusader may be the prosecutor seeking justice for a traumatized victim or a defense attorney fighting a lonely battle on behalf of a wrongfully accused social outcast. She might be a plaintiff’s attorney giving voice to a powerless litigant suing a giant corporation with a team of deep-rug lawyers.

    The Crusader doesn’t have to be good at the job. This type is based on passion, not talent. Although she will have to find a legal nugget somewhere. Nobody wants to watch/read the story where the true believer gets steamrolled by the mighty empire unless there is a twist.

            #2 The Shark:  

    Maybe getting runover enough times has led to cynicism. The Shark sacrificed early zeal for the pursuit of wealth. Perhaps the idealism never existed to begin with. The Shark has learned the courthouse’s back passages and traverses them for his own enrichment. A reasonable doubt for a reasonable fee.

    Sharks represent the profession devoid of any nobility. Maybe they are skeptical about whether anything like justice exists, or perhaps the Shark has just become detached, substituting the luxuries purchased through success for any moral examination.

    Perhaps you’ve seen the Shark’s billboard on your morning commute. They can usually be found near the emergency room entrance to the hospital.

            #3 The Sleazy Drunkard:

    Abandon hope all ye who enter here. The Sharks or The Crusaders might journey down a path leading to Sleazy Drunkard. Drugs or alcohol might serve as the balm for a Crusader who must confront frequent disillusionment as the system disappoints and ultimately crushes him (and his clients). Alternatively, the absence of a moral compass might lead to unrestrained hedonism. The lawyer’s downward spiral leads to professional lapses—the decline may be marked by the diminished quality of the Drunkard’s scotch.

    To be fair, perhaps the archetype should have a slash, Sleazy/Drunkard. This attorney might still dream of nobility through an alcohol fog or, alternatively, have substance abuse as but one of a collection of issues, the others more sinister.

    Sleazy/Drunkard stories might be about redemption. Think Paul Newman’s Frank Galvin in The Verdict. (There are more recent examples, but that’s where my mind went.) The Crusader who tumbled is resurrected. Alternatively, the story might make the Sleazy/Drunkard the villain. Clients come to an attorney’s office needing help. That need makes them vulnerable and subject to exploitation. Every courthouse I’ve ever worked in has rumors about lawyers who took in-kind payments for their services. Characters who prey upon the weak in their hour of distress make first-rate villains. 

            #4 The Buffoon:

    My final categories get a bit muddled. The Buffoon could easily be subdivided into several distinct buckets. I think that they arise from our shared understanding of courts. We know the tropes of a courtroom. The lawyer who runs afoul of those established practices can generate either
laughter or cringes.

    J. Cheever Loophole, played by Groucho Marx, might mock the theater of the
courtroom with an over-the-top portrayal. John Gibbons, the public defender in My Cousin Vinny, might set up Joe Pesci through his ineptitude. We know what they’re doing or failing to do because we have learned through books and movies what to expect from a courtroom.

    The Buffoon might also just be very bad at his job. There is an element of talent, experience, and instinct in a successful attorney, just as in any other profession. A case in the hands of a Buffoon might produce an unjust outcome. The story might, therefore, set the stage for vigilante action to balance the scales. Every revenge story is about righting an unpunished wrong.

            #5 The Pettifogger

    This type takes the conversation in a different direction. To this point, the types have been more about degrees of cynicism toward the criminal justice system. The Pettifogger may fall anywhere along the scale. This is a classification based on tactics.

    By etymology, the Pettifogger may seem synonymous with the Shark, the Drunkard, or the Buffoon, depending on where the emphasis lies. A combination of “petty” (small) and “fogger,” an obsolete Dutch expression for a cheater. (You might think of an English profanity that sounds something like it.)  A pettifogger became a “small cheat,” a substandard practitioner of law. One who handles only small cases or employs questionable methods, according to the website Lexico.

    Instead, I’ve seen the name employed and use it here to describe the attorney who makes every question a struggle, every point a battleground. To illustrate, consider the following exchange.

            Lawyer #1: “Tell the Court your name.”

            Pettifogger: “May I take the witness on voir dire?”

            Judge: “Briefly.”

            Pettifogger: “How do you know your name?”

            Witness: “My parents called me that.”

            Pettifogger: “Objection, hearsay. No personal knowledge of the fact.”

            And with that, the bloodletting begins.

    I’ll hasten to add that there is a place for focusing on the details in court. Witnesses may want to describe with broad strokes and attention to the specifics is how inconsistencies may be reconciled and conflicts resolved. Reasonable doubt is created in the details. Excessive focus on every detail, perhaps using the pain of court to deter seeking an appropriate legal remedy, creates the world where “lawyer” becomes a pejorative.    

    We’ve split the lawyering world into five classes. You might find other categories as you look across the expanse of fiction. We might also think about how these categories affect fiction. That will have to be a topic for another day.  

    Until next time. 

A Text Mess

Some weeks ago, I posted a few voice-to-text hiccups that found their way into
probable cause documents I had been tasked to review. Since then, a couple more have caught my eye and proven too good to ignore.

The other night, a police officer arrived at a domestic disturbance, separated the warring parties, and started talking to the man. The officer in the probable cause affidavit noted that from the defendant’s speech, mannerisms, and behavior, it was obvious, the report stated, that the arrestee had been “heavenly drinking.”

Without further elaboration, I could only guess that his speech involved promises to “smote thine enemy” and the mannerisms include the waving of “his rod or staff.” The police transported him, presumably not to a land flowing with milk and honey.

Jlcoving, CCBY-SA3.0, Creative Commons.org

A different officer arrested a young man and, during the subsequent search of his person, located a short glass tube blackened with burn marks. The officer, helpfully, identified the object in his possession as a “math pipe.”

The problem with these little typos is not that I can’t figure out what the officer intended to say, but rather they encourage flights of imagination. One minute I’m reading the case report and the next I’m composing a story problem.

Mark bought an eight-ball from his hook-up. How many dime bags can he get from this? Mark took a hit from his math pipe. His hand shot into the air. Thirty-five, he answered. (The answer might depend on the reliability of your dealer and is always subject to the local conditions of your market.)

Of course, interpretation errors cannot always be blamed on the software.

Years ago, I joined the Dallas County District Attorney’s Office. Back then, the first stop for a newly hired prosecutor was the traffic appeals court. Defendants had the right to a trial de novo on some traffic tickets. We new kids rotated in and out, staying only until a “real” spot opened in one of the regular misdemeanor courts. We would then transfer, and our important selves would move on to prosecuting Class A and B misdemeanors. Don M. was the lawyer permanently hired into the traffic appeals court. He would remain behind to welcome the next new hire.

Don was a weathered attorney, typically in a brown suit. He had traded the stress of an active criminal practice for a steady paycheck and good insurance. (Life choices I better understand now than I did at the time.) The morning docket involved long lists of cases from around Dallas County. Don stood before the judge and stated the government’s position as each case was called. He spoke in a low voice, mumbled, and expressed himself in a code that had been refined to efficiently describe the state of each case to the presiding judge.

“Hiram Bedder,” I heard him routinely tell the judge, and the ticket disappeared.

I didn’t know who Hiram Bedder was or why he had such control over the flow of traffic ticket cases in Dallas County.

I could have asked, but that’s not the normal response of a newly licensed lawyer who’s been validated as special smart. Instead, I wondered and assumed one day I’d meet Lawyer Bedder somewhere in the office’s hallways.

I later learned that Don was saying “higher and better.” The officers had also filed a more serious charge, often driving while intoxicated, in addition to the traffic violation. The district attorney’s office would dismiss the minor charge and not allow the defense to essentially depose the arresting officers. (There was also a jurisprudential question of double jeopardy back in the day, but we don’t need to get all in the weeds on the legal issue.)

My brain went voice-to-text on Don’s speech and completely misfired. I can only imagine where it might have ended up if I’d been drinking heavenly?

Until next time. 

For Sin and Whiskey

    One of the benefits of being a magistrate is that I get to leave the county jail at will. I exit the facility when I choose. No one chases after me shouting "escape" or reports me to my supervisor for taking an unscheduled break. My unsolicited tip for the day: if you must go to jail, make sure that you know you'll get out again.

    Just outside the front door of Tarrant County's central jail facility, affixed to the wall, a plaque informs visitors that upon this site stood the first church erected in Fort Worth. The sign is easy to miss. Most people don't study the walls looking for historical tidbits. But I'm glad I saw it. I like the symmetry of knowing that since Fort Worth's earliest days, this spot has been dedicated to rooting out sins in one form or another.

    If an early Fort Worth resident walked one block east from the First Christian Church, he would find himself at The First and Last Chance Saloon, the first bar opened in my city. Records describe it as a dingy box of a room with a few shelves along the west wall holding whiskey, a local peach brandy, and gin. On the unornamented bar sat a bucket of water for those drinkers who needed a chaser. In another choice historical happenstance, two of the county's misdemeanor courts occupy the floors rising from the southeast corner of Taylor and Weatherford, the intersection where The First and Last Chance once stood. Driving while intoxicated prosecutions occur weekly at the site of Fort Worth's first saloon.

    My favorite story from those early days also deals with whiskey. When Major Ripley Arnold established the fort at the confluence of the Clear and West forks of the Trinity River, there already was a settlement, Bird's Fort north and east of Fort Worth. Bird's Fort, later Birdville, had been established in 1840, nine years earlier than Fort Worth. In 1850, Birdville was named the county seat. By 1856, the expanding village of Fort Worth felt it should replace Birdville as the county's seat of justice. The reasons were a mixture of pride and practicality. Citizens came to town on court day. Court day, therefore, was good for retail business. Influential citizens from Fort Worth persuaded the legislature to hold a special election to resolve the question. The votes would be cast in November 1856.

    Both towns' leading citizens plotted. The election had three polling places established around the county. Fort Worth and Birdville, naturally, were the primary voting centers. In front of both mercantile stores in Fort Worth, the town leaders placed barrels of whiskey. After voters cast their ballots, they could imbibe. The reasoning, it seems, was that those who came to Fort Worth to vote would more likely cast their support behind the challenger.

    The opposition employed the same tactic. The city leaders of Birdville stored their whiskey in a stand of live oaks near the town's polling station. On election eve, however, intrepid Fort Worth residents found and siphoned off the barrel. On voting day, the Birdville election managers had no alcohol inducement.

    Despite this, the voting remained too close to call. As the election drew to a close, Sam Woody rode into Fort Worth with fourteen of his neighbors. They resisted the temptation of the whiskey, entered the election hall, made their way past the election judges, and each cast their ballots. They, they saddled up their horses and rode out of town on their way home. They needed to get started. Although Woody had been a county resident for years, he had recently moved to the neighboring county. When he came, he brought fourteen other ineligible votes with him.

    Fort Worth won the election by seven votes.

    Curious readers might ask whether the Fort Worth residents went to the First Christian Church to seek absolution or to the First and Last Chance Saloon to celebrate?

    What happened instead? A parade of jubilant and inebriated citizens marched by torchlight to Birdville. There, they collected the county records, desks, chairs, and law books. Loading them onto wagons, the procession marched back to Fort Worth, carrying their spoils of victory.

The Fair (Fort Worth), Public domain, via Wikimedia Commons

    A legislator supporting Birdville discovered that more votes had been cast in the election than eligible voters. He protested the outcome. Pro-Fort Worth representatives challenged his protest. The legislature resolved the back-and-forth dispute by ordering another election. The Fort Worth contingent added a rider to the bill adding a third election option, a new county seat at the center of the county. The second ballot was held in 1860. The earlier vote had already reshaped the county's economic landscape. This time, Fort Worth soundly defeated Birdville (FW 548, Center 301, Birdville 4).

    These days, Birdville only exists as the name of the school district for some of Fort Worth's northeastern suburbs.

    Around these parts, we spend a great deal of political time and energy worrying about election irregularities. Scores of elected officials work to safeguard me and my fellow citizens from voter fraud. I wonder if they realize that the city they're protecting likely wouldn't exist without purloined whiskey and Sam Woody's voter fraud.

    Until next time.

Doubts and Questions

     In my childhood home, the family television stood in the living room. A thick box on four spindly legs, our tv offered us the choice of three networks. In the living room, Mom had her chair, and Dad had his. I had my choice to either flop on the sofa or spread out on the carpeted floor. I usually chose the couch.

    I don't remember many of the major news events of the 1960s. Those were my single-digit years and I had more important things to worry about than the war in Vietnam or peace protests. What exactly most of those things were, I can't recall. I'm sure they involved elaborate plans composed along with Tim and Chuck and the rest of the guys whose houses stretched up Cloudas Avenue.

   I have the barest memory of the 1968 Democratic National Convention. I recall few of the details, but all three networks covered the convention. Their focus on Chicago meant that there was nothing worth watching for seven-year-old me. I missed the protests and the chaos. Hubert Humphrey, the sitting vice-president. The presumptive Democratic Party nominee had been born in Huron, South Dakota. Many around Sioux Falls wanted the local boy to make good. Not me. I backed Richard Nixon, the Republican candidate. The reasoning was simple. My nine-year-old cousin Steve supported Nixon, and Steve was my polestar. 

This little memory came back to me as I considered submitting a story in response to Michael Bracken's call for submissions to Groovy Gumshoes, an anthology of private eye short stories set in the 1960s. Other possibilities spun around in my head. I thought about a Woodstock-based story. Woodstock seemed the quintessential 1960s moment. I rejected the idea. As I was sitting down with fingers on the keyboard, a story of Michael's ran in Alfred Hitchcock Mystery Magazine. He'd set his tale at Woodstock. It seemed to me that my story would be competing against not only every other submission but also the editor's already formed image of how the ideal Woodstock story should read and feel.

    The other reason I stayed away from Woodstock had to do with a bagpipe lesson.

    My elder son plays the bagpipes. When you're a high school bagpipe competitor around here, the enemy is always St. Thomas Episcopal School in Houston. They have an elaborate Scottish arts program and can overwhelm any contest in which they appear. Like Bob, my son's Glaswegian bagpipe teacher said, "on your best day you can beat any of them, but there is always another one coming over the hill." (It sounds better if you say it with a thick brogue.)

    Woodstock as a topic felt too center of the plate. I imagined another story always coming over the hill. Number theory suggested that every similar submission reduced the likelihood that my story would get accepted. I abandoned any further thought about Woodstock and sought a tale from the margins, a place fewer people might choose to go. 

    I returned to my little memory and began typing. "Case #5 From the files of the Mood Dog Detective Agency" emerged. The story came together quickly and I got it off to Michael well ahead of the deadline. 

    My bagpiping theory of numbers arose again shortly after I hit "send." Netflix released The Trial of the Chicago 7. I couldn't turn on my television without a promo for the movie. An optimist might have seen the brilliant opportunity, an important historical event filling the air just as the editor read my submission. I, however, chose the negative and fretted over all the submissions covering the topic inspired by watching the Netflix film. They'd all be streaming into Michael's inbox.

    I'd submitted my story. I could do nothing but sit on my hands and wait. At least I had a movie I needed to watch. 

    I'm honored that Michael chose to include Case #5 in the recently released Groovy Gumshoes anthology. I hope that you like it. Do the same sorts of doubts and questions plague your thought process when you sit down to write? 

(On the day this posts, I'll be untangling my life following my return from Malice Domestic. I hope we've had the chance to meet in person.)

    Until next time. 

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.