NFL Star Charged With Intoxication Manslaughter

Grant M. Scheiner

NFL Star Charged With Intoxication Manslaughter

Posted on April 2, 2009February 28, 2019 by Grant Scheiner

The Los Angeles Times reports that NFL Star, Dante Stallworth, has been charged with a Manslaughter charge stemming from a March 14th accident that killed 59 year old Mario Reyes. This is the prototypical case that has formed organizations such as M.A.D.D. and caused anti-drunk driving bill boards to be put along side our roadways. This incident occurred in Florida, and if Stallworth is convicted he faces up to fifteen years in prison. The L.A. Times reports that Stallworth’s blood-alcohol level was a .126, which was obtained by a blood test.

These cases have a lot of issues. The fact that a person died immediately invokes sadness and anger. Yet, these cases are much more complicated than they appear at first glance.

The prosecutors must prove two complicated issues. First, the prosecutors must prove Dante Stallworth was Driving While Intoxicated. One may think this is a no-brainer because of the blood test. Skilled attorneys have successfully challenged blood test results on many different fronts. There are too many issues regarding a blood test to discuss in this blog, but I will say the results are not as hard of a fact as one may think. It is similar to taking a person’s temperature. I can think of three different methods to take a person’s temperature. If you did all three methods at once, you would likely get three different results.

The second issue is causation of the accident. Civil lawyers have been arguing since the invention of the automobile, “who entered the intersection first?” Just because Stallworth may have been intoxicated does not mean the accident was caused by him or the intoxication. The classic example is suppose a Drunk Driver is sitting is stopped at a red light. Then, another driver falls asleep and crashes into the Drunk Driver and the Sleepy driver dies. Drunk Driver may get a DWI, but he would not be guilty of Intoxication Manslaughter. Now that is an over-exaggerated example. Typically, the cause or fault of the accident may be impossible to determine because one party is deceased and the other party is not talking.

There is no question that all drivers get into accident without alcohol being an issue. The question for Mr. Stallworth will be “was his alleged intoxication the cause of this accident?” Meaning if he had not been over the legal limit, “would the accident not have occurred.”

We will wait and see!

The Science Behind Shaken Baby Syndrome

Grant M. Scheiner

The Science Behind Shaken Baby Syndrome

Posted on April 2, 2009February 28, 2019 by Grant Scheiner

The Houston Chronicle reported that a Harris County man was arrested and charged with capital murder in the death of his son. From what I gathered from the article, the autopsy revealed no external injuries and the cause of death was severe trauma to the brain which the Detectives believe is consistent with Shaken Baby Syndrome.

As a Harris County criminal defense lawyer, I do not feel it is appropriate to discuss this case given the early stages of the case, the seriousness of the charge, and the small amount of information contained in the Houston Chronicle article. The man is presumed innocent and we will leave it at that for now. Yet, I am curious to know what the general public thinks about Shaken Baby Syndrome.

Do people believe this phenomenon exists? Does our medical community and modern science know enough about the brain to make such a determination?

The National Center on Shaken Baby Syndrome is the first place I looked. The site at http://don’tshake.com/ is the first web site I viewed. This is a very well-intended site meant to prevent child abuse. It is clear the organization is well organized and active. Similar to Mothers Against Drunk Driving, one cannot be at odds with the purpose and reason for existence of the organization. The National Center on Shaken Baby Syndrome’s mission is to protect babies from abuse.

Yet, I found it unsettling that the site has a page titled “The Legal System’s Role in Facilitating Irresponsible Expert Testimony.” The purpose of this page was to accuse criminal lawyers of paying an expert to say the syndrome does not exist. Outright, out in the open propaganda.

I have used experts in many cases. You pay for the expert’s time and the expert gives you the opinion. You do not pay for the “opinion.”

So does anyone think Shaken Baby Syndrome does not exist? In a very interesting article, Shaken Baby Syndrome was put to the test. Michael Prange, Ph.D., Brittany Coats, B.S., Ann-Christine Duhaime M.D. and Susan Margulies, Ph.D., medical researchers at the Children’s Hospital of Philadelphia, tested the shaken baby hypothesis. They published their results last year in the Journal of Neurosurgery.

Models were used to simulate forces thought to cause shaken baby syndrome. The research showed that a grown man is not strong enough to shake a baby hard enough to tear brain tissue and cause bleeding. Wonder what inmates convicted of this charge think about that research?

Typically, shaken baby syndrome excludes injuries to the neck. The experiment showed that shaking the model baby would definitely cause injuries to the neck.

So I believe that is a major issue in a Shaken Baby Case. Was the baby’s neck injured? Medical research and common sense should require some injury to the baby’s neck to be consistent with violent shaking of a baby.

A shaken baby case is a hard case to prosecute because there is credible medical research that disputes the existence of such a phenomenon. On the other hand, these cases are even harder to defend because there is a deceased infant and loved ones and police want to hold someone responsible. Too many times there is a perfect scapegoat such as the babysitter or ill-tempered boyfriend.

Curious to know people’s thoughts…

Should I take a Breath Test?

Grant M. Scheiner

Should I take a Breath Test?

Posted on March 30, 2009February 28, 2019 by Grant Scheiner

As a Houston criminal defense lawyer, I frequently get the question, “If I am stopped for DUI, should I take a breath test.” Nobody has ever been surprised by my answer. Yet, the reasons, and there are many, not to take a breath test are far more complex than simply not incriminating oneself. People ask, “what if I only had one drink, then should I take the breath test?” I am not in the business of telling people what to do, but my answer is still no. Deetrice Wallace is another reason why.

Deetrice Wallace was a contract employee for the Texas Department of Public Safety. Her day job was a Houston ISD school teacher. From the looks of it, Ms. Wallace was a fine teacher and she was recognized as the 2007 Harris County Teacher of the year.

Ms. Wallace’s contract position with DPS was that of a Breath Test Technical Supervisor. This position is responsible for maintaining and calibrating the “infallible” intoxilyzer 5000. Apparently Ms. Wallace was too busy teaching because the Texas Rangers (guns and badges not baseballs and gloves) investigated Ms. Wallace for falsifying breath test maintenance records. The Harris County District Attorney’s office announced in a press release that Ms. Wallace has been charged with a state jail felony Tampering with a Governmental Record.

I have two DWI clients that I have found so far that have directly been affected by Ms. Wallace’s conduct. I do not think Ms. Wallace was some nut on an anti-dwi crusade. If I had to guess, I would just assume apathy and laziness caused this problem. That is truly sad considering people’s freedom, reputation, and employment abilities are drastically affected by a DWI conviction. DPS has invalidated 2600 breath tests.

So here is the question: What policy is DPS, the State of Texas, and our local prosecutors who are legally bound to “seek justice” going to change. Are we just going to keep letting DPS employees tell us if DPS machines are working. I wonder how long a DPS chemist or DPS breath test supervisor would last if one was honest about how unreliable and unscientific the intoxilyzer 5000 really is.

In every Breath Test Refusal case, prosecutors always say, “the defendant did not take the breath test because he/she knew it would show he/she was over a .08.” Actually, citizens should not take the breath test because NOBODY knows what it will show.

Harris County Judicial Elections

Grant M. Scheiner

Harris County Judicial Elections

Posted on March 30, 2009February 28, 2019 by Grant Scheiner

November 4, 2008 was not only a big night for the national stage, but locally as well.

Nine felony district courts were up for election. Democratic challengers won 8 out of the 9 criminal judicial races.

The results are as follows:

174th District Court was vacant because Judge George Godwin is set to retire. The Judge-Elect is Ruben Guerrero.

176th District Court- Judge Elect Shawna L. Reagin

177th District Court – Judge Elect Kevin Fine

178th District Court- Judge Elect David Mendoza

179th District Court- Judge Elect Randy Roll

337th District Court- Judge Elect Herb Ritchie

338th District Court- Judge Elect Hazel Jones

339th District Court- Judge Elect Maria Jackson

35st District Court- Judge Mark Kent Ellis

Judge Ellis of the 351st District Court was the only Republican incumbent to hold onto his bench. Several of the newly elected candidates are fixtures down at the criminal courthouse and others are fresh faces.

It goes without saying that Harris County voted out top-notch, qualified judges like Judge Roger Bridgewater and Judge Caprice Cosper. On the other hand, I think it is fair to say that other courts were due for a change. At this point, we can only hope our new judges are ready to maintain in some courts and create in others, a forum where a citizen can receive a fair trial.

We’ll see what happens.