About Erik Locascio

Erik Locascio is the owner and principal attorney of The Law Offices of Erik M. Locascio, PLLC, in Katy, Texas, where he practices criminal defense. Previously, he spent three years at the Harris County District Attorney's Office as both a misdemeanor and felony prosecutor.

Border Patrol Crossings and the Erosion of the Fourth Amendment

United_States_Border_Patrol_badge_(1992-2003).svgEarlier this summer, a friend of mine took a trip down to South Padre Island to enjoy the sun, surf, and the white sandy beaches. When they called me before they were coming back, they off-handedly mentioned that they would have to go through the “border checkpoint” on the way back.

I was completely aghast at this. “You didn’t cross into Mexico, why would there be a border patrol crossing checkpoint?” I asked incredulously. My friend shrugged it off and said they didn’t know, it was just there and they had to go through it. I had never heard of this before! South Padre is completely within the United States, why would anyone have to go through a checkpoint on the way north? Thus started my mini-quest into figuring this out. As a side-note, this was made even more fascinating to me because, as a child, I went to South Padre Island with my family, and I have no recollection of going through a checkpoint.

A quick perusal of Google Maps tells us that, yes, there are two checkpoints within the state of Texas on the major highways north from South Padre: one on State Highway 550 right outside Brownsville, and one on Interstate 69E outside Harlingen. A cursory look at the Customs and Border Patrol website makes it seem like the Harlingen checkpoint is, in fact, permanent, but it is not clear.

The agents at the checkpoint are legally allowed to ask motorists where they are headed, where they are coming from, and what their nation of citizenship is. Most people dutifully answer the questions and then are waved through the checkpoint, free to go on their way. There is a “secondary checkpoint” within the main checkpoint, where border patrol agents can siphon vehicles if they need to investigate them further.

This is all well and good, except it seems to me to be a massive and flagrant violation of the Fourth Amendment to the Constitution, wherein we’re all supposed to be safe from unreasonable searches and seizures. If I’m coming back from either Mexico or Canada—or overseas of course—it’s more than reasonable for me to be subjected to a border crossing and customs interview. But, I have the absolute right to travel unhindered and without being accosted within the country, as long as I’m not committing any crimes. Period.

Now, of course, driving a car is a privilege, not a right. Which is why your privilege to drive can be suspended by the states if you break enough traffic laws, or for other reasons. Indeed, the Fourth Amendment protections change when it comes to a vehicle; unlike a search of my home, which requires a warrant, a search of my car only requires probable cause. If I’m speeding down the road, and an officer pulls me over for that infraction and then subsequently smells the strong odor of marijuana coming from me and my car, he has probable cause to search my vehicle.

These border patrol checkpoints, however, are a different animal. I’m not committing any traffic infractions which rise to reasonable suspicion, and I am certainly not committing any actions that would rise to probable cause for a search. I’m merely driving down a freeway or highway, minding my own business. Yet, it is perfectly constitutional and legal—under a Supreme Court case called United States v. Martinez-Fuerte 428 U.S. 543 (1976)—for a border patrol agent to ask me to stop my car, and then proceed to interrogate me about where I’m from and where I’m going and if I’m a U.S. citizen. This, to me, is outrageous.

There has been some success, however, by some citizens refusing to answer questions and even refusing to be stopped at the secondary checkpoint. I would say this needs to be the standard response by any citizen who is just traveling from Point A to Point B within the United States. Unless you have probable cause to seize me and subsequently try to search me, I’m not going to answer your questions. This Supreme Court decision needs to be revisited, especially in the current climate regarding concern over a growing police state in this country. As long as I’m minding my own business and not violating any laws, leave me in peace; this is the heart of the Fourth Amendment.

Change, or How I Learned to Stop Worrying and Love Being a Defense Attorney

change-1076220_960_720In a bit of a departure from my normal outrage-filled blog posts, I’m going to stop and reflect a moment on myself, as I’m coming up on my first year anniversary of being a defense attorney. It has been a pretty fantastic ride, so far.

Now, this may shock you, but I was a prosecutor for the Harris County District Attorney’s Office for three years. In my time there, I prosecuted everything from Class C Misdemeanors to 1st Degree felonies. I have a good number of trials under my belt—though I didn’t go to trial nearly as much as my fellow prosecutors—and I observed and helped out on many more. I was never a diehard everyone-is-guilty-and-must-pay kind of prosecutor; I was more of the mind that there needs to be a compromise between the State and the defense to reach a mutually agreeable resolution. After all, I took to heart that my first and only responsibility as an Assistant District Attorney was to “do justice.”

Because of that, I probably was more lenient than I should have been, offered better deals to clear cases off the docket, worked alongside defense attorneys more than my colleagues did. And I had no problem with this! I didn’t see things as adversarial as others did; I needed to face both myself and the consistent but rotation gallery of defense attorneys I saw. I always treated them how I wanted to be treated, with respect and maybe even camaraderie, on some occasions, as our roles are mirror images of each other and we go through a lot of the same trials and tribulations.

None of this means I didn’t try my very best in trial, or didn’t care about the victims I would contact day in and day out, or that I wasn’t outraged about some of the cases I had (if you Google me, you’ll find a major case regarding an infant being given alcohol, which was a heinous case). But I knew, in my heart of hearts, I wouldn’t do this forever. Between politics in the office and being of a more liberal stripe, I knew my days were numbered.

You may be asking yourself, What’s the point of all this? Well, it’s this: I had a major transition to make when becoming a defense attorney. Your attitude has to shift some; now you actually have a client, and your duty is to represent that person zealously and to the best of your ability. That was new for me and still takes some getting used to, as my advice can be ignored, much to my chagrin. Additionally, I have the opportunity now to travel to different counties to see how their courts and systems work, which was also extremely eye-opening. Surprise, not every county does things the same as Harris County!

Being a former prosecutor also helps me in the empathy department, I believe. When I talk to young prosecutors now, I have vivid flashbacks of going through exactly what they’re going through on a daily basis: some defense attorney comes up to me about a case—probably their only case—and starts bombarding me with facts, and I have no idea what case they mean. That happened to me constantly, so I try to remain cognizant of the fact that these people are overworked and vastly underpaid, especially in misdemeanor courts. Patience and understanding go a long way.

In parting, prosecutors, for me, aren’t the enemy; they are doing a necessary job, just like I am. The enemy is injustice, is unfairness, is a crushing system in which honestly we are all complicit to some extent, but we are trying so desperately to change, one day at a time, one case a time.

 

Hobson’s Choice and the Fifth Amendment

password-866978_960_720Francis Rawls is being held in a jail cell, without bail and without any formal charges being filed against him, until he agrees to incriminate himself.

If that sentence doesn’t chill you to the core of your being, then I don’t know what could.

Rawls is suspected of accessing child pornography, which is of course one of the most heinous crimes a person can commit in our society, without a doubt, and no one is condoning such behavior. But you’ll notice I used the word “suspected” and not “charged” or “indicted.” No, Rawls is being held without any charges being leveled against him. Full stop. Do not pass Go, do not collect $200. To add insult to injury, law enforcement officers and a federal court are both demanding that Rawls provide a password to two encrypted drives, for which a search warrant has been executed. He claims he does not remember the passwords and thus cannot provide them; authorities naturally believe him to be lying.

By way of a primer, the Fifth Amendment of the United States Constitution states the following:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

I would like to draw your attention to the bolded sections especially. First, Rawls is being held without an indictment or presentment by a Grand Jury, which is the typical way felonies are charged in most jurisdictions, including the federal system. Arguably child pornography charges are an “infamous crime,” which would implicate the Fifth Amendment’s requirement for charges to be brought by a Grand Jury before being held. Rawls hasn’t even been charged, let alone indicted; while it is typical to be held pending indictment in most if not all jurisdictions, being held without charges at all is unconscionable under our Constitution.

Second, and possibly more frightening, is the fact that Rawls is being held until he complies with a court order to incriminate himself by providing evidence to the authorities that would more likely than not end up in his eventual conviction. While the Fifth Amendment prohibits compelling a defendant to “testify,” it’s silent on whether or not a defendant can be compelled to give up any evidence at all against him or herself. If we imagine a world where any defendant can be ordered by a judge to provide any and all evidence to law enforcement outside of true testimony, it’s clear to see that the writers of the Constitution most likely meant to include any type of self-incrimination, not just testimony.

And so the Hobson’s Choice for Francis Rawls has materialized: Provide the password to the encrypted drives, with the inevitable subsequent charges being filed almost immediately; or stay in jail indefinitely, without bail and without being charged, for invoking the Fifth Amendment.

Naturally, Rawls has opted to invoke his Fifth Amendment right (not privilege, not option, but right) to remain silent and to not testify against himself, in any way. Arguably as he should! The government cannot be allowed to brute force its way into incriminating evidence if it doesn’t know how to go about getting that information. Just because you have a search warrant doesn’t mean I have to help you search my house.

Invoking the Fifth Amendment should not be penalized, at all, by any mechanism within the judiciary or law enforcement. Without this protection, people would either be compelled to testify against themselves or trapped in jail until they eventually crack and give in. What kind of free and just society, guided by due process and the rule of law, locks up people indefinitely without bail, without charges, without a trial and without proof? And then, what society asks that person to provide proof against himself as he sits detained indefinitely? An unjust society, that’s what. Not the United States of America. Not us, not here. (Yet, it’s really happening.)

 

Beyond Cruel and Unusual

Criminal punishments in this country have been backwards for quite some time, oftentimes divided down socioeconomic and racial lines. Another, perhaps less obvious and less considered dividing line is violent and non-violent crime. Recently, the Supreme Court refused to hear the case of a 75-year-old disabled veteran who received a shocking life sentence for growing about three dozen marijuana plants—to be used medicinally, not for distribution or sale. How did this insane sentence come about? The law in Alabama, of course:

Alabama, like three other states, mandates a life without parole sentence for simple possession of small amounts of marijuana by people with certain prior felony convictions — and Mr. Brooker had been convicted of a string of robberies twenty years earlier in Florida, crimes for which he served 10 years in prison. In such a case, the law doesn’t require prosecutors to prove any intent to sell the drug.

At first blush, this law seems overly draconian. On the one hand, we want to believe that a felon can do his time in prison, get out, and become a productive member of society. On the other hand, we continually punish those who have “done their time” by often denying them the right to vote, preventing them from getting apartment leases and jobs, and now, by punishing them with literally the maximum sentence allowed under the law for just having a few marijuana plants. Truly, we are through the looking-glass here, folks.

To add insult to injury, the Supreme Court refuses to hear the case, which effectively keeps alive these mandatory life sentencing laws in the few states that still have them on the books. And of course, these laws naturally affect the lower socioeconomic classes inordinately more than the higher ones. After all, if a 75-year-old disabled veteran can’t access or can’t afford the medicinal marijuana he needs to feel well enough to function in his life, he’s going to grow a few plants to help him survive. And because of the completely imbalanced sentences being handed down by trial courts around the country, he’s going to die in prison because of a few pot plants.

Contrast this with a case out of New York that garnered quite a few headlines, where an NYPD officer shot an unarmed black man in a housing project stairwell two years ago. Ex-Officer Peter Liang was found guilty of manslaughter by a jury—as he should have been, at the very least—and the trial moved to sentencing. Both Liang and the victim’s girlfriend spoke in open court. Shortly thereafter the judge decided, sua sponte, that the jury’s verdict was incorrect and unsupported by the evidence and therefore Liang was guilty of negligent homicide at the most. The judge, Danny K. Chun, then sentenced Liang to 5 years probation and 800 hours community service.

There is so much wrong with this situation that I scarcely know where to begin. First, having a jury’s verdict, in a criminal case, overturned on a whim during sentencing by a sitting judge is unthinkable and ludicrous [at least by Texas standards]. While “judgment notwithstanding the verdict” is a common practice in civil courts, it’s essentially unthinkable in criminal case: either the defendant is acquitted and a reversal by the judge would violate their Sixth Amendment, or the defendant has been convicted and a reversal would certainly trigger an appeal by the State. Second, compare Liang to our 75-year-old disabled veteran growing weed above. Liang literally ended a person’s life—and still maintains it was an accident—and received probation, while the disabled vet received a mandatory life sentence for growing a few pot plants.

Never mind that an ostensibly neutral magistrate overturned a lawful jury verdict; violent and non-violent crimes in this country are woefully out of balance regarding sentencing. Should Liang have received prison time? Perhaps, perhaps not. He was a first-time offender and, according to the District Attorney, had little likelihood to re-offend. (Unless perhaps again confronted with an unknown figure in a stairwell in a housing project in New York City.) In reality, the only re-offending our disabled vet was going to commit was growing a few more pot plants to make the end of his life a little bit more bearable.

What is the point of this exercise? To being to raise awareness that sentences in this country do not make sense anymore. The Constitution prohibits “cruel and unusual punishment,” but that of course has no definition under the law. Every person in this country could look at a given sentence and have a different opinion regarding if it seemed cruel and unusual. Is going to prison for a number of years for shooting an unarmed person cruel and unusual? Hardly, as that sentence is meted out over and over throughout the country. However, is life in prison for a few plants a cruel and unusual punishment? I think we can all almost universally agree that it is.

Judges in our country, at least among the various state systems, have an incredible amount of discretion when it comes to sentencing. But, where they are elected directly by the people of the state, those same judges are held accountable to the people. The only way that will work is if we, the people, pay attention to what our judges do and do not do in a given situation, and react accordingly: re-electing them, or replacing them. You want a revolution? Here’s an easy place to start.

To end on a somewhat positive note, a judge in North Carolina sentenced a veteran to 24 hours behind bars for a driving while intoxicated case. Seems fairly normal, right? Well, the twist here is the judge spent the 24 hours with the veteran, and in fact even drove him to the jail for his sentence. That is true compassion, that is knowing all of the circumstances behind a person and their actions, past and present. Yes, a man may have felony convictions on his record, and yes, a man may be a former police officer with a clean sheet, but the crime in front of the judge must be the one that bears the most scrutiny. There’s a reason we keep propensity evidence out of trials; maybe it needs to be excluded from sentencing as well. Regardless, we need to have a huge discussion about sentencing in his country. The time is ripe.