KENS TV in San Antonio reported yesterday that the New Braunfels City Council finally approved a parking permit plan for areas of New Braunfels in the vicinity of the Comal River. As I have previously blogged ("What Parking Permits Have to Do With Criminal Cases on the Comal River") this parking permit plan has less to do with traffic control than it does with a pleasing a faction within the city that is hostile to tourists.
Under the plan, you will not be able to park in areas near the Comal River unless you have first obtained a parking permit from, and approved by, the City of New Braunfels (parking permit applications forms are now available online). Daily visitor permits can be obtained, but must be gotten in advance, and are subject to city approval. In other words, tubers wanting to float the Comal River with their own tubes will have to be willing to hike in order to get access to river. If you are getting your tube from an outfitter, you will have to find an outfitter that has managed to secure alternative parking for its customers.
The City of New Braunfels, of course, has no plans to build or acquire any public parking close to the Comal River or downtown. This is just another of a long line of ordinances passed by the City of New Braunfels in order to harass tourists. Over the last decade, many people have moved into New Braunfels who have no direct ties to the local economy -- they work in San Antonio or Austin, they are retirees, etc. Rather than valuing river tubers as a boon to the local economy, they are viewed as a problem to be eliminated. Thus, you have seen a procession of weird ordinances only to be found in New Braunfels, such as the one regulating the size of a cooler.
Ordinances which allow police enforcing zero tolerance policies to issue criminal citations to people innocently minding their own business and not bothering anyone. Perhaps when the New Braunfels City Council manages to drive tourism elsewhere, and revenue from tourism dries up, the Council will begin to use its ordinance making power to actually protect public safety and welfare, rather than as tool for harassment.
Over the past few weeks, a couple of fellow Seguin criminal defense lawyers have approached me to complain about the new discovery policies in the Guadalupe County District Attorney's Office. This brings up the whole subject of how a criminal defense lawyer goes about finding out what the State's evidence really is. In Texas, it's not as straightforward as you might think. Although the Texas Code of Criminal Procedure allows courts to order that prosecutors make discovery available to criminal defendants, for the most part, it's not mandatory.
Instead, in Texas, we technically have a discovery system that some have referred to as "trial by ambush," since neither side is required to disclose it's case to the other prior to trial. Back in the Jurassic Period, when I was a prosecutor, it was not unusual for me to see half a dozen defense witnesses being sworn in to testify at the beginning of a trial and for me not to have ever heard of any of them, since they were never mentioned in any police report or witness statement. While legally, pretrial discovery for defendants in Texas is virtually nonexistent, in practice, discovery gets done. Instead of having a universal system of mandated discovery, what has developed is a system where every prosecutor's office decides how many of its cards it will place on the table, and why and when it will do so.
There's an advantage to prosecutors for providing discovery. When the State's case is made known to the defendant, the defendant will either be more likely to negotiate, or at the very least, point out the flaws in the prosecution. In this way, cases can get resolved without necessitating a trial. In addition, the prosecutor in the case protects himself from later charges that he hid evidence that was potentially exculpatory to the defendant -- a big legal no-no. Nevertheless, you find a wide range of policies in different prosecutor's offices. The Comal County District Attorney's Office, for instance, has a fairly broad discovery policy, and discovery is relatively easy to obtain. Usually, we just need to put in an informal written request of what we would like turned over to us in a case, and it usually is. In Guadalupe County, on the other, the District Attorney is attempting to do a limited version of what is known as reciprocal discovery.
It other words, the District Attorney will agree to turn over some items of evidence, as long as you are willing to provide it with notice that you intend to introduce certain types of evidence at trial in return. Mainly, the District Attorney's policy requires defense counsel to give notice of who his witnesses for trial would be to the D.A. sometime during the week prior to the trial starting. Many defense lawyers are leery of participating in reciprocal discovery because they feel that it will hamstring them at trial, by limiting their ability to switch defenses in midstream or to call witnesses at the last minute. However, although there may be some cases where it is in defense counsel's interest to keep the State totally in the dark, I find that those cases are the exception, not the rule.
If I find myself needed to change my client's defense every five minutes or not wanting the State to know ahead of time who my witnesses are, I probably don't have a very good case to take to trial anyway. On the other hand, giving the D.A. notice of witnesses prior to trial is a heads up to them that we intend to mount a vigorous defense, and that they might want to rethink the case. In most cases, it is a price worth paying in order to get a peek at the State's file prior to trial.
Unlike many of my colleagues in the criminal defense blogosphere, I'm not uncorking bottles of bubbly over the recent U.S. Supreme Court decision in Arizona v. Gant, because I don't think it will have much practical effect on the way possession of marijuana and other drug cases are prosecuted. In Gant, the Supreme Court narrowed an exception to the requirement of a search warrant and probable cause to search known as "search incident to arrest."
When the police arrest someone, they are allowed to search the area in the immediate vicinity of the defendant, without probable cause, to insure that the defendant cannot have access to a weapon. Typically, the way that this normally plays out is that a cop arrests someone for, say, an unpaid traffic ticket warrant, and then searches the person's car as a search incident to arrest.
Sometimes, during such a search, the cop finds. other interesting items, such as marijuana or other illegal drugs. In Gant, the defendant was arrested after his car was already parked in his driveway. The cops then conducted a search incident to arrest afterwards, while the defendant was already in handcuffs and in a patrol car. The search turned up some illegal drugs, for which the defendant was charged.
The Supremes said that the search violated the rationale for a search incident to arrest, since, when the defendant was already in cuffs and away from his car, it was impossible for him to retrieve a weapon from the vehicle. The court concluded that the drugs seized should have been suppressed. Although I applaud any defense victory in the Supreme Court, I doubt that this decision will have any far-reaching effect on how cops handle automobile searches, because there is yet another exception to probable cause available to cops -- the dreaded inventory search.
When a cop arrests someone in a car, the car is normally impounded, and the cops then routinely conduct an "inventory" search of the vehicle. The official purpose of an inventory search is to catalogue the items found in the car when it is impounded in order to safeguard the property rights of the owner of the vehicle. In reality, it's a fishing expedition for the cops. Nothing in Gant prevents cops from continuing to conduct inventory searches of cars prior to impound.
Remember, in Gant, the car searched was sitting in the defendant's driveway, so the cops had no need to impound it. Ninety-nine percent of the time, however, a car is stopped on the roadside, and the cops will impound it after an arrest. So, in most cases, rather than calling the vehicle search a "search incident to arrest," the cops will just wait a minute or two and call the search an "inventory" instead. So while Gant is a victory, it's a small one. Don't expect to make much of dent in marijuana and drug prosecutions.