The current comment on all the criminal issues of the day

Dallas Morning News editorial – “Policing Texas Prosecutors”

Prosecutors are the most powerful, or arguably, the most powerful group of people in America, with the ultimate weapon to put citizens in jail, prison, or to death.

On October 26, 2012, The Dallas Morning News called for Texas legislators to pass laws, such as mandatory reciprocal discovery in criminal cases, that would help avoid wrongful conviction. Such a statute would be based on two Supreme Court cases, Brady v. Maryland (in 1963) and Kyles v. Whitley (in 1995). In the Brady case, the Supreme Court said it is the Constitutional duty for prosecutors to turn over any evidence tending to show that the defendant was innocent. In the Kyles case, the Supreme Court expanded that to include evidence which impeached the credibility of any witness testifying for the government, state or federal.

The problem is the temptation of prosecutors not to hand over evidence which "helps the defense make its case." Young prosecutors want to win, both for their own self-esteem and for advancement. Ambition for advancement up the ladder also drives older prosecutors as well. Finally, the elected prosecutor wants to maintain his job, which requires assuring the public, at election time, that he has a high conviction rate, and is prosecuting vigorously in keeping the community safe from criminals.

DNA proves that there are wrongful convictions, and that the criminal justice system is flawed. However, can anyone reasonably doubt that there are also wrongful convictions where DNA is not available? Even in wrongful convictions, false confessions occur in many cases because the police promise the arrested citizen that they will "help" the citizen-accused by putting in a good word to the prosecutor or the Judge to keep his sentence lower than it otherwise would be, if he will confess.

The writ of habeas corpus, dating back to the 1600s, and known as "The Great Writ," gives wrongfully convicted defendants an opportunity to file for post-conviction relief when there is prosecutorial misconduct or ineffective assistance of counsel, or both, as well as other grounds. Even when those two or other grounds are present during the proceedings of the citizen-accused, they are often difficult to prove. In addition, prosecutors and Judges are skeptical of the writ of habeas corpus because it is abused, and because neither wants to admit that he/she participated in a proceeding that was tainted. So, the prosecutors fight against the writ being granted, and the Judges "find" facts in the prosecutors' favor. The convicted person can appeal that judicial finding, but the Texas Court of Criminal Appeals typically affirms the trial court's recommendation, which is usually against the convicted citizen.

All that is required for a writ of habeas corpus to be effective is to show evidence that "undermines the confidence in the verdict." There is no requirement to prove that the defendant would have been acquitted. The mandatory legislation requiring mandatory pre-trial reciprocal file sharing between prosecutors and defense attorneys is a beginning. But the legislators should go further, and specifically define by statute what is known as "Brady evidence" to include impeachment evidence, which many prosecutors are not aware of; and, to legislatively mandate the prosecutor to interview those who did the investigation on the case, including the police, the detectives and federal agents. That way, the prosecutors avoid "plausible deniability," when they do not disclose something the police know, which is helpful to the defense, but which the police do not pass on to the prosecutor. The prosecutors' interview of law enforcement is a Constitutional requirement under Kyles v. Whitley, but very few prosecutors conduct that inquiry, with the result that the Constitution is violated on a daily basis in the criminal justice system.

Arch McColl is an experienced Post Conviction Lawyer.

Internet Prescription Sales

The Wall Street Journal reported (page B1) on October 5, 2012 that "U.S. officials moved this week to shut down web sites owned by Canada Drugs the Internet pharmacy and drug wholesaler that distributed counterfeit Avastin to doctors last year...." The federal government, however, has stated that individuals who are buying no more than a 3 month supply of non-controlled (i.e., not illegal) prescription drugs are not being prosecuted, although it is technically illegal for an individual to purchase prescription drugs without a valid prescription.

In response to the proliferation of on line prescription pharmacies, the National Association of Board of Pharmacies (NABP), established in 1904, created in 1999 a program named Verified Internet Pharmacy Practice Sites (VIPPS). VIPPS gives a "seal of approval" to companies which ship prescriptions internationally so long as they meet all applicable state licensure requirements and regulatory standards as well as the standards of the National Association Board of Pharmacy. Even though almost all of these companies are based in the U.S., a person can get substantial savings on most prescription drugs, though most of these companies require a prescription from the patient's doctor.

For example, according to, a 3 months supply of Advair Diskus, prescribed to treat asthma, is normally $947.97 at traditional drug stores, but on the Internet, from a VIPPS approved Internet site, the same amount of the drug is, on average, $149.00. Walgreens and Walmart are on the VIPPS list. A list of VIPPS approved pharmacies can be found at: The company, Pharmapassport seems to have some of the better prices.

by Arch McColl, Criminal Defense Lawyer

Dallas Police Use License Plate Scanners to Track Citizens

Regarding the recent article in The Dallas Morning News concerning police scanners, there was a statement made in the article by a policeman to the effect that although scanners could be abused, they were not being abused.  Yet, the article itself contradicts that by stating, “During investigations, police can use the data to spot behavioral trends, such as frequent visits to a coffee shop.”  So now, the police think citizens are acting suspiciously if they frequent the same coffee shop on a daily basis.  That citizen’s name undoubtedly goes on a list of people who should be “watched.”

This is abusive police conduct because it violates the right to privacy, defined many years ago by the U.S. Supreme Court as, “The right to be let alone.”

by Arch McColl, a Criminal Defense Lawyer in Dallas, Texas.

The Trayvon Martin Killing

Motion for New Judge should be granted– The legal standard for most motions for a new Judge (technically called a Motion to Recuse the current Judge) is not whether there is actual prejudice in the mind of the Judge presiding over the case, but whether, in the mind of the average person viewing the facts, there is an appearance of impropriety. This objective standard controls over the subjective standard of whether the Judge currently controlling the case has, in his mind, any preconceived notion about the guilt or innocence (or any other preconceived notion) of the case. When there is a Motion to Recuse filed, a different Judge is appointed to hear the facts and rule on the motion.

In the case against George Zimmerman for the killing of Trayvon Martin, the factual basis for the request to recuse is that the husband of the current Judge is a law partner with an attorney who was first approached by Zimmerman's family, but he declined to represent Zimmerman. The family then retained the current lawyer.

However, it is reasonably foreseeable that some facts were disclosed by Zimmerman's family to the first lawyer, and it may have happened that the first lawyer conveyed some or all of those facts to his law partner, who is the husband of the Judge. Whether or not any further communication took place between the husband and the Judge as to those facts, the appearance of an impropriety is present. So, the Judge should be recused (or recuse herself), and there should be another Judge appointed to preside over George Zimmerman's trial for murder.

In cases like this one, on motions to recuse, Judges should err on the side of being conservative, to avoid the risk of the appearance of impropriety which leads to a lack of confidence in the judicial system by the public. Unfortunately, balanced against a better guideline of being conservative, is the very real temptation of a Judge to stay in media headlines and stories for political reasons, in order to increase his or her visibility and name recognition for the next election.

Motion to Seal Records – Zimmerman's lawyer also made a motion to seal the records regarding the case, including the police investigation records. That motion will should be granted, and the records should be sealed. Although such records are typically open to the public in Florida, one of the grounds to allow such records to be closed is whether or not they need to be sealed in order for the defendant to receive a fair trial. Because of the widespread publicity regarding the case, it will be difficult to get a jury panel whose members have not read or heard something about the case, and who have, in many instances, developed a preconceived notion of the guilt or innocence of Zimmerman before they walk into the courtroom. Unfortunately, every experienced criminal defense lawyer knows, many prospective jurors will admit to having a slight preconceived notion, many will not, because they want to be on the jury.

Therefore, the wise thing to do to help avoid that problem altogether and to minimize the continued spread of publicity about the case, especially by the release of the police investigative reports, which are often slanted against the citizen-accused, is to seal the records. Although the U. S. Constitution provides for a "public trial," that right is primarily for the protection of the defendant to avoid being tried in secret behind closed doors.

The Motion to Unseal the Records is being filed by the media. Although the media also has an interest in a criminal trial being public the sealing of the records will not prevent the trial from being open to the public. If it were ordered that the doors to the courtroom be locked to shut people out, including the members of the media, that would be a different matter. But that is not the case here. The only issue is whether the records should be sealed temporarily, as the contents of the records will be revealed during the trial and the trial will be open to the public.

For the above reasons, the defense Motion to Seal the Records should be granted.

The author, Arch McColl, is a Criminal Defense Lawyer based in Dallas, Texas.

To Be Safe Record Any Meeting with the FBI

Recently, a bank officer friend of mine received an unannounced visit from two FBI agents in connection with an investigation about a bank failure. Should my friend have waited until he had legal counsel before he talked to the agents or does that send the wrong signal?

To be on the safe side, and because you do not always know the objective of the FBI agents, you must assume when FBI agents come to visit you that they are not your friends or your protectors. Their job is very simple: to gather evidence which they may use against you or others in a criminal case.

They may tell you that you are only a witness, yet later through their investigation, they may change your status to that of "suspect" or "target." But if you already have consented to an interview of which there is no record, you may find yourself with one of several later problems.

First, you may not have remembered facts accurately and your inaccurate statements to the FBI could be viewed as false statements to a government agent, punishable by up to five years in the penitentiary and/or a $10,000 fine. You must assume when FBI agents come to visit you that they are not your friends or your protectors.

Second, you may have remembered facts accurately, but the agent wrote your answer down inaccurately in his report. Unless you sign or adopt a statement, you or your counsel normally will never get to see the agent's rendition of his interview, based on his noted with you, until the agent testifies in court. If there is an inaccuracy in his report, there is a danger of it becoming a "fact" solidified in the agent's memory through repeated discussions with others as well as his testifying to the grand jury. If the U.S. Attorney's Office also is relying on the accuracy of the agent's report, then it becomes more and more difficult to correct a mistake in the report because memories on the matter simply get distorted.

The author, Arch McColl, was voted "Best Crimininal Defense Attorney" by D Magazine.


Contact us now

1-888-979-1112 (Toll Free)

214-979-0999 (Local Dallas number)

or fill out our online Case Analysis Form