Tuesday, September 27, 2011

The Legendary to file criminal complaint on DPS

Was the DPS staff attorney “negligent”?

Reporting by R.S. Gates
Story by The Legendary Jim Parks

“Print gave tribal man an eye for an ear.” - Dr. Marshal McLuhan, “Understanding Media”

Waco – In the wee, small hours of the morning of Sunday, September 5, Chris Braziel was cruising down the service road of Highway 6.

A Texas DPS Trooper pulled him over for a routine traffic stop and determined he may have been drinking alcoholic beverages.

The trooper arrested him and took him to the lockup, where he refused a “breath-a-lyzer” test. That gave the state the opportunity to obtain a search warrant to stick a needle in a vein and obtain a blood sample. The sample showed he was intoxicated by alcohol beyond the slim margin the law allows.

The trooper booked him for driving while under the influence of alcohol – a “B” misdemeanor of a serious nature that costs first offenders an estimated $8,000 in court fees, fines, counseling, probation and attorney's fees – plus whatever rehab, increased financial responsibility auto insurance coverage and resulting loss of employment may occur.

It's a misdemeanor offense, but a serious misdemeanor offense, to say the least.

No one was injured. There was no loss of property damaged. He committed no other moving violation offense, and there are no other complications - except one.

Chris Braziel is a veteran patrol sergeant with the McLennan County Sheriff's Department.

That item assured the arrest and offense report would make the news – but only in certain selected outlets such as the daily paper, “The Waco Tribune-Herald,” and television outlets such as KWTX, the local CBS affiliate.

To other forms of media, such as this blog, the official record is – so to speak – off the record.

Or is it?

The Texas Department of Public Safety has a policy that all requests for public information – such as the first page of the offense and arrest reports regarding the arrest of Sgt. Chris Braziel – must be made in writing to the public information office of the department's Austin headquarters where they are reviewed by a staff attorney in the office of the General Counsel.

Fee. Fi. Fo. Fum – etc.

But the law doesn't read that way. Section 552 of the Texas Local Government Code states in its preamble that public records are the property of the people, not of the state, which is the custodian of record, and access to public information must be made promptly.

That means now, not 10 days from now. There are other stipulations, such as the requirement that requestors may inspect the records at the location where they are stored, then pay reasonable copy fees for them, or make an electronic request by e-mail or fax.

That's how your insurance agent or broker can get the goods on your driving record so quickly – with the touch of a button.

If review is required by an attorney, it must not take any more than 10 days without a formal explanation of the reason why.

Police agencies and other custodians of public record such as local government officials have taken a new tack in the infowars. They have decided that it means they have 10 days to respond to a request for information. That is, they have 10 days in which to respond if you don't work for a big shot outfit like the daily paper or the television station.

What is involved in the “first page” offense and arrest report, a standard form promulgated throughout the state?

Nothing more or less than what is allowed by the holding in a lawsuit called Houston Chronicle Publishing Co. v. City of Houston, 531 S.W. 2D 177, 186-87, which was handed down by the 14th District Court of Appeals in Houston in 1975. That includes “police blotter” information as to crimes committed, “show up” sheets for those arrested and identified, and arrest reports. The holding was modified in 1984 as to certain information which must now be redacted, such as the Social Security number of the defendant and the names of complainants in sex offense cases. Identity theft is a total bummer, you know.

To withold this information is an equally serious Class B misdemeanor offense, a criminal matter which is punishable by the same penalties as the act of driving while intoxicated.

So, how did the newshounds at the paper and the television station get the information? Good question. There are phones, computers, e-mail boxes, and smoke signals. It doesn't much matter how you communicate because, as we have all learned here in the “global village” - you know, the one it takes to raise a child – the medium is either the message, or the massage, or...Never mind.

When Sgt. Cliff Federwisch of the Texas Highway Patrol referred Legendary Reporter R.S. Gates's request for information about the arrest of Sgt. Braziel, he was following the department's new policy, which is contrary to both the holding in case law and the requirements of the Texas Open Records Act, which is called Sect. 552 of the Local Government Code.

According to Mr. Gates, who is a former police officer and still holds a commission as a certified peace officer from the Texas Commission on Law Enforcement Standards, when the staff counsel of the DPS, a lady named Cohen, required his request to be placed in a certain form and directed to her department at Austin – all of which caused an undue delay – she committed the same level of offense through criminal negligence as Sgt. Braziel did through driving under the influence of alcohol.

He asked, “Did the Sgt. run down to Austin and arrest her? Nope!”

So, Mr. Gates has initiated a criminal complaint against Ms. Cohen through the office of the Criminal District Attorney of Travis County. He filed an information with a certain Ms. Lori Carter.

One must maintain a sense of humor about these matters, you know.

According to that ubiquitous interpreter of Dr. Marshal McLuhan's seminal work, “Understanding Media,” Tom Wolfe of “Esquire” magazine and other fine publications, “The new technologies, such as television, have become a new environment. They radically alter the entire way people use their five senses, the way they react to things, and therefore, their entire lives and the entire society. It doesn't matter what the content of a medium like TV is. It doesn't matter if the networks show twenty hours a day of sadistic cowboys caving in people's teeth or twenty hours of Pablo Casals droning away on his cello in a pure-culture white Spanish drawing room. It doesn't matter about the content. The most profound effect of television - its real "message," in McLuhan's terms - is the way it alters men's sensory patterns. The me dium is the message - that is the best- known McLuhanism. Television steps up the auditory sense and the sense of touch and depresses the visual sense. That seems like a paradox, but McLuhan is full of paradoxes. A whole generation in America has grown up in the TV environment, and already these millions of people, twenty-five and under, have the same kind of sensory reactions as African tribesmen. The same thing is happening all over the world. The world is growing into a huge tribe, a . . . global village, in a seamless web of electronics.”

His question in that now-famous “Esquire” article was simple enough.

“What if he's right?” That's what the merchandisers and packagers and marketing experts, the public relations whizzes and advertising account executives kept asking themselves in that long-ago year of 1965 long before Charles Whitman turned the university and the drag into one of the world's largest crime scenes, the year the Vietnam War started for millions of poor boys from working class America, the year when...whatever happened happened in the global village made of a seamless web of electronics.

(Cue the Dragnet audio - bom-ba-bom-bom - bom-ba-bom-bom...

No one knew then, but certainly, from our position on the electronic cloud, it turns out Dr. McLuhan was right.

After all, country editors and publishers all over Texas charge substantially higher rates for placement of advertisements near the columns on pages that carry reports of who got arrested for what over the weekend and precisely which offenders were indicted for what felony offenses during the latest term of the Grand Jury.

In fact, it's a weekly event for consumers of news. Kind of a memo from Boss Hawg, that mover and shaker in the big old cowboy hat.

What if we're right? Well, if Ms. Cohen should be convicted for a criminal offense rather than being enjoined by a civil action to reveal the information sought, she could be punished the same as Sgt. Braziel will surely be if convicted for driving drunk.

A conviction would expose her to “(1) a fine not to exceed $2,000;
(2)confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement,” according to Section 12.22 of the Texas Penal Code.

On the other hand, a judge could suspend her sentence and place her on community supervision – also known as probation – or deferred adjudication, a scheme by which successful completion of probation results in wiping the slate clean. One begs the question. How much does an item such as that go for in the palaces of justice? Eight grand? Wonder how that feels to those who live in the global village, have a tactile sense of the medium massage delivered by eye for an ear television - daily journalism Big Daddy system of truth, justice and the American way?

To wipe the slate clean, such a deal. Or should we call it the “police blotter?”

Still sounds right, no?

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