Cops and Lying

It is fascinating to me that a cop would ever consider lying about a case. Granted, there is not a lot of information in this posting that let's us know what the lie was, but as a former prosecutor for the Travis County Attorney's Office, I understand that it must have been quite a substantive lie or misrepresentation for the DA's office to VOLUNTARILY OFFER to vacate the conviction. Normally, a criminal defense attorney would be the one moving to have a conviction vacated, NOT the DA!

KXAN reported that an Austin police officer is under investigation for allegedly lying about a case that led to the criminal conviction of an Austin man.

Ernest Smith was convicted in September on drug charges, but the district attorneys office learned something was wrong, and it had to do with one Austin cop. It's unclear exactly what this officer may have lied about, but it was big enough for the district attorney to do something it rarely does.

The district attorneys office initiated a conversation with Smith's defense attorney and offered to vacate a judgment on his conviction based on new information. Essentially, Smith's conviction from September is going to be withdrawn. APD and the DA are not sharing too much information with KXAN either but we do know this... Sources say that officer lied about something in the drug case, so District Judge Bob Perkins dropped the case entirely some three months after Smith was convicted.

But friends of his say it's too late. That's because Smith is still in jail on unrelated drug charges. It's also unclear how this might affect the other cases this accused officer is involved with.

It is fascinating to me that a cop would ever consider lying about a case. Granted, there is not a lot of information in this posting that lets us know what the lie was, but as a former prosecutor for the Travis County Attorney's Office, I understand that it must have been quite a substantive lie or misrepresentation for the DAs office to VOLUNTARILY OFFER to vacate the conviction. Normally, a criminal defense attorney would be the one moving to have a conviction vacated, NOT the DA!

Now, why is it fascinating to me that a cop would lie in a case? Simply put, we have nothing to gain by lying. If a case is not strong enough to warrant a conviction, then the person should not be convicted. It does not reflect negatively on the officer that one of his "collars" or persons arrested is not convicted, unless of course said officer is on an "ego trip" and takes the lack of conviction personally. Consider the following scenario (written in an imaginary police report):

1) Officer responds to a disturbance at an apartment complex, where it is reported a Suspect is selling drugs.

2) Officer meets with the Suspect first and justifiably conducts a "pat-down" or "frisk" of his outer clothing to ensure there are no weapons present that could endanger the officer.

3) Officer feels a lump in the Suspects pocket and based off the officer's "training and experience" realizes that the substance is an illegal narcotic. Now, we have invoked the "plain-touch" rule... a close cousin to the "plain-sight" rule...

4) Officer reaches into the pocket and pulls the contraband out and arrests the Suspect for possession of the narcotic...

5) Valid arrest?

Setting aside any political or personal agendas, the above scenario is almost a textbook setting for what happens to officers on an almost daily basis. Agreed? I will guarantee that somewhere in this great State of Texas that there is at least one person arrested under facts like these every day! Now, fast forward to trial...

The Officer testifies to the above facts but during the direct examination of the prosecutor, the officer embellishes a little bit on the story. In fact, the Officer says, "Ya, the Suspect resisted me when I tried to handcuff him. In fact, he pushed me in the chest, and because of where his hand hit my sternum, it caused pain."

At this point, the officer has testified to elements that would warrant filing assault on a peace officer on the Suspect. But, it is critical to determine whether the facts of the resisting were in the report? What about the pain? The injury? If not, trust me, it did not happen. That is the most basic of training that police officers receive in an academy... write in detail and be thorough. Do not omit facts.

So what, you may be asking, what does this do to the officer? Won't the Suspect still be convicted for the drug possession, even if the the resisting charge is dropped or never filed? Yes, probably... but I challenge you to consider this, "Should Suspect be convicted or should he receive a stiffer punishment based off the facts now presented?"

Now I could go on for pages debating the last question, but I won't... I want you to think about it.

To summarize, what happened here is the officer may have merely made a mistake by omitting the facts from the report, and if that is what happened, that is what he should have explained. Or, he could have truthfully stated that he did not remember the details and left the case alone ... but above all things, the officer should not lie about the facts of the case or enhance them with more detail ....

After all, what does the officer bring to the witness stand: Credibility? Integrity? A willingness to "protect and serve"? Or, is it more of a desire to "win at all costs"?

I challenge anyone reading this, especially cops, to consider what it is that they stand for and why they do the job that they do... as an officer, I assure you, I care more about my credibility and integrity than I do a desire to "win" a case. In the end, it does not matter to me if the person I arrested is convicted. For me, what counts is that I did my job and that I did not violate anyone elses rights. And as for the person that I took to jail in a given shift, that person is not sub-human... they just made a mistake ... or they just got caught... but to lie or even stretch the truth a little bit... that brings an entire system of justice crashing down on itself...and brings the officer's credibility down, jeopardizing every case he has ever touched!!!

In the end, I am a Texas attorney. I am also a Texas cop. And, I do believe that the system works, when all the parties to the system fulfill their respective roles. But, I also am excited when I see that someone, taking advantage of his position or authority, loses credibility and is dismissed or disciplined. Yes, I am a defense attorney. Yes, I am a cop. But first and foremost, I am an honest person who believes in doing what is right and just under the law, and I challenge others to do the same....

Dax Garvin, Attorney and Counselor At law is an experienced Austin Texas DWI Attorney, Austin criminal attorney, and a compassionate Austin will probate lawyer.

I graduated from Texas Tech University School of Law in May, 2002, and was licensed to practice law in Texas that November, following the July, 2002, Texas Bar Exam. Prior to that, I obtained my Bachelor of Science in Criminal Justice from the University of Texas at Tyler and my first years of undergraduate work were spent at Austin College in Sherman, Texas, where I learned the true passion of humanity-recognizing we are all part of one great society.

I worked in the Travis County Attorney's Office from August, 2002, until October, 2003, when I entered into private practice with a mid-size Austin civil litigation firm, where I enhanced my skills for legal research, writing, motion practice, and working with insurance companies from the defense perspective.

But, I always felt that my skill best resided within the criminal justice system. So, I took it upon myself to obtain a perspective that most criminal defense attorneys lack-the law enforcement officer's point of view.

I was hired by the Williamson County Sheriff's Office in October, 2005, and donned a uniform to patrol the County's roadways as a certified Texas peace officer. Vested with the powers of the State to investigate crimes and arrest violators, I worked both day and night shifts, for over 2.5 years, and during those months, I obtained a knowledge and awareness that enables me to better serve you.

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Texas Patients, Families May Be Unwitting Victims Of Federal Privacy Laws

While the Health Insurance Portability and Accountability Act, a federal law enacted in 1996, is primarily designed to allow Americans, including those in Texas cities of Dallas, Austin and Houston, the right to take health insurance coverage with them, some provisions of the law that protect the confidentiality of information are causing confusion.

Observers are seeing evidence of the issue arise in cases where relatives are being denied access to medical charts, the health care providers citing provisions of the law--commonly known as HIPAA.
The problem, say experts in the field, appears to be confusion as to the intent and actual wording of HIPAA privacy rules, which were introduced in 2003. Some healthcare providers are said to be applying the regulations in a way that may be seen to be overzealous, even arbitrary in nature.

On the other hand, medical professionals and privacy experts extol the legislation, saying it has helped to make confidentiality of health information a priority, something they argue is important as the nation moves toward a system that is more and more focused on computerized medical records.

At the same time, ensuring electronic privacy has produced what some say is a tangle of regulations--the result being confusion as to what is allowed under HIPAA and what is not.

The confusion may itself lead to more government involvement, with Massachusetts Senator Edward M. Kennedy, a sponsor of the original legislation, proposing an office within the Department of Health and Human Services (HHS) that would serve to interpret medical privacy rules.

The extent of the problems related to HIPAA are largely unknown since the only complaints investigated relate to patients being denied access to their own medical information, which is a violation of the law.
Officials from HHS say that health care providers, either innocently or purposefully, will cite HIPAA as an excuse for not making permitted disclosures. Some examples of HIPAA misinterpretations have included:

--The cancellation of birthday parties in nursing homes for fear that revealing a resident's date of birth could be a violation.

--Patients being assigned "code names" in doctor office waiting rooms so they could be summoned without identification.

--The refusal of nurses in an emergency room to telephone parents of ailing students for fear of passing out confidential information.

--Delays in creating immunization registries for children.

One key word in the legislation that seems to invoke confusion is "may"-- the law saying medical staff "may" disclose but not requiring that they do so.
Medical professionals on the side of commonsense in the world of HIPAA are distinguishing different categories of secrecy.

So-called "good faith nondisclosures" might include a nurse taking a phone call from someone claiming to be a member of the family. Not being able to verify the relationship might be a cause for refusing to give out medical information to that caller.

On the other hand, using HIPAA as an excuse for not taking time to gather records required by public health officials investigating a case of suspected child abuse might fall under the category of a "bad faith nondisclosure."

The fear by those in the medical field of being penalized for improper disclosures might seem to be unwarranted--especially considering there have been no penalties levied since the legislation was enacted.
In fact, according HHS officials, medical professionals are permitted to talk freely to family friends, as long as the patient does not object. Those discussions can be held without a signed authorization and it is not necessary to have the legal standing of a health care proxy or power of attorney. On the issue of investigation of crimes such as child abuse, HIPAA defers to state laws, which may require such disclosure. Health care workers may not reveal confidential information about a patient or medical case to reporters, but they can discuss general health issues.

Many decisions related to HIPAA issues are made by employees of health care providers who feel safer saying "no" than "yes"-- especially if the rules do not appear to be clear.

When the answer is "no, I can't tell you because of HIPAA," some consumers simply don't object.
Healthcare privacy is an issue that's not likely to go away anytime soon. At the same time, Americans have a deep concern for the ability to stay healthy. If you're a young individual who wants to look ahead with health in mind, you should take a look at the revolutionary, comprehensive and highly affordable individual health insurance solutions created by Precedent specifically for you. For more information, visit us at our website, [http://www.precedent.com]. We offer a unique and innovative suite of individual health insurance solutions, including highly competitive HSA-qualified plans and an unparalleled “real-time” application and acceptance experience.

Precedent puts a new spin on health insurance. Learn more at [http://www.precedent.com]

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High Risk Car Insurance

Bless your heart if you fall into a high risk category of the car insurance world. High risk means that you are a high risk to the insurance company and this could be for various reasons. Let me give you some idea so you can decide if you can afford to be in the high risk category.

Accidents almost always put you in the higher category unless you have a clean record and this is your first accident. Then, you might be spared. Otherwise, you'll be in for an expensive insurance payment for the next 3 years until these accidents are cleared off your record.

DUI or DWI. Unfortunately, these charges hang around for a while and even if you have a one time offense and otherwise clean record, you still may be penalized and put in the high risk group. Best bet - if you drink, don't drive. Hello? McFly?

Always pay your insurance. If you miss payments or decide not to carry insurance for a while, then you have created a gap. Insurance companies know when you have gaps in coverage. This is an indication that you won't pay them on time and puts you in a higher category. Why? Well, you quit paying and they quit making any money. They have to reissue policies or reinstate old policies. Best bet - pay your bills and pay your insurance on time.

One option that is under your control is the type of vehicle you drive. If you buy a new corvette with 505 hp and expect to get the same cost insurance as if you were driving a Ford Explorer then you are too goofy to be driving a corvette. If the car you chose even has a hint of being "sporty", then you might be bumped into the high-risk group. It is all about statistics and cost of repairs. I'm sure smashing up a big money corvette will cost more to repair than a Toyota corolla.

How can I lower the rates? Don't have an accident. Don't buy the new corvette. Buy an old heavy car that's less likely to be stolen and for goodness sake, don't drink and drive. If you have already fallen into one of these categories, you might still be able to lower your insurance. Ask you agent about raising the deductible or other advice - put the monkey on his back and see what he can do to get your rates to a manageable level.

Stuart Simpson

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